STATE OF NEW JERSEY VS. DASHAWN H. WARD (17-04-0886, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3867-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DASHAWN H. WARD,
Defendant-Appellant.
__________________________
Argued November 8, 2021– Decided November 19, 2021
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-04-0886.
Emeka Nkwuo argued the cause for appellant
(Lomurro, Munson, Comer, Brown & Schottland, LLC,
attorneys; Emeka Nkwuo, of counsel and on the brief).
Lucille M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Lucille M. Rosano, of
counsel and on the brief).
PER CURIAM
After a jury trial, defendant appeals from his convictions for second-
degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2(a)(1), 2C:15-2(a)(2);
first-degree carjacking, N.J.S.A. 2C:15-2(a)(2); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); second-degree
conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1), 2C:15-1(a)(2); and first-
degree robbery, N.J.S.A. 2C:15-1(a)(2). Defendant argues that the motion judge
erred in denying his motion for a Wade1 hearing, the trial judge erred in
admitting into evidence a white t-shirt he was wearing at the time of his arrest,
and the trial judge erred in finding aggravating factors and in imposing
consecutive sentences.
Around 3:30 a.m. on August 31, 2016, Tikah Arrington was sitting in her
car in front of her apartment building in the parking lot with the windows rolled
down. A car with two occupants pulled into the lot and parked alongside
Arrington's driver's side. The occupant in the front passenger's seat told
Arrington to "get out of [her] car." The front passenger then exited the car and
attempted to open Arrington's driver's side door. The front passenger opened
1
United States v. Wade, 388 U.S. 218 (1967).
A-3867-18
2
the driver's side door of Arrington's car and pointed a gun at her stomach.
Arrington fled to her apartment building where she observed the gunman's
vehicle and her vehicle being driven away. Five minutes after the carjacking,
Arrington and her friend called 9-1-1 to report the armed robbery.
Officers Wayne Adams and E.H. Carter, Jr. were the first officers to arrive
at the scene and speak with Arrington. Adams testified that Arrington described
the armed front passenger as being "between [five foot six inches] and [five foot
eight inches], wearing a white t-shirt, blue jeans, short haircut" and having a
medium complexion. Arrington described the driver of the car as being in his
early twenties and wearing "a white t-shirt with his hair[] [in] dreads, braids,
pushed up in like a bun and a bandana around it."
The next day, around 1:30 a.m. on September 1, 2016, Dishon Burnett was
walking home after purchasing food, and he placed his keys inside the carry-out
bag. Two men walked towards Burnett, and one asked Burnett if he knew where
they could purchase marijuana. Burnett responded "no" and continued walking
home when he heard one of the men say, "[m]an, run your shit." When Burnett
turned around, he saw one man walking towards him and another pointing a gun
at him. The man walking towards him took Burnett's bag and sneakers while
A-3867-18
3
the other held his gun on Burnett. The two men then left in the same direction
that Burnett was walking.
Burnett arrived at his apartment and used his neighbor's phone to call his
sister to ask her to bring his spare apartment keys. He obtained the spare keys,
stopped into his apartment to change his clothes, and returned outside to search
for his keys, which he believed may have been discarded by the assailants. At
this time, he saw the gunman, prompting him to walk to the other side of the
street and shout, "can I have my keys?" The gunman drew his weapon, pointed
it at Burnett, and fired three shots, all of which missed Burnett. Burnett ran into
his apartment and called the police. The 9-1-1 call was recorded and played for
the jury at trial. He described the incident to the dispatcher, including
descriptions of the assailants, and noted that he knew the gunman as Dashawn,
who used to work at the local Burger King.
Burnett gave a recorded statement to detectives and described the gunman
as a black male with a light brown complexion, five foot ten to five foot eleven,
150 pounds, "bony," and wore a "white t-shirt with a red and blue design" and
"sky blue" washed baggy jeans. He also had a short haircut and no facial hair.
Burnett believed that the gunman was young and stated that he had a "baby
face." As to the other assailant, Burnett described him as a black male with a
A-3867-18
4
dark complexion, five foot ten to five foot eleven, about 160 pounds, with dreads
above his shoulders. Detective Thomas showed Burnett a single photograph of
defendant, who he identified as the gunman with "100 percent" certainty.
Detective John Bocchino was assigned to investigate the carjacking of
Arrington. Later the morning of the carjacking, Arrington arrived at the East
Orange police precinct to view a photo array of over 650 photos. Arrington
flagged eight photos from the array, noting that two photos resembled the
assailant who exited the vehicle and that none of the remaining photos resembled
either assailant. When the police showed Arrington updated versions of the two
photos that she previously selected, she stated neither were the assailants.
Bocchino went to the scene of the carjacking and recovered surveillance
camera footage from Arrington's apartment building, which Bocchino showed
to him. The surveillance video showed the assailants arriving next to Arrington's
vehicle at 3:11 a.m. and Arrington running away twenty-nine seconds later.
On September 1, 2016, Bocchino created another array with six
photographs from the previous array. Detective Sharieff Greenwood conducted
the photo array and recorded it by video. Arrington identified defendant as the
"one who actually took [her] vehicle" at gunpoint, prompting Bocchino to obtain
an arrest warrant and then to arrest defendant.
A-3867-18
5
On September 7, 2016, Bocchino asked Arrington to return to the police
station again to view a second six-photo array. Detective Rolando Baugh
administered the photo array, which was also video recorded. Arrington
identified co-defendant Glenford Findlay as the driver of the vehicle. After
Arrington's identification, Bocchino asked Baugh to complete pretrial
identification documentation, including a Photo Array Eyewitness Identification
Procedure Worksheet (the worksheet), which Baugh only partially completed.
Bocchino later arrested Findlay outside of his apartment building.
Defendant filed a motion for a Wade hearing. The motion judge
conducted oral argument on the motion on February 26, 2018, and ultimately
denied the motion, explaining that "there [was] just no evidence of
suggestiveness in terms of anything that was done here with system variables
that would . . . warrant a . . . Wade hearing."
On appeal, defendant raises the following arguments for this court's
consideration:
POINT I
THE [MOTION JUDGE] ERRED BY NOT
GRANTING [DEFENDANT] A WADE HEARING.
A-3867-18
6
POINT II
THE [TRIAL JUDGE] ERRED BY ALLOWING THE
STATE TO INTRODUCE [DEFENDANT'S] WHITE
T-SHIRT INTO EVIDENCE ALTHOUGH NO
WITNESS IDENTIFIED THE WHITE SHIRT AS THE
SHIRT THE SUSPECT WAS WEARING AT THE
TIME OF THE CRIMES.
POINT III
THE COURT SHOULD SET ASIDE THE JURY'S
VERDICT OF GUILTY AS BEING [AGAINST] THE
WEIGHT OF THE EVIDENCE. (Not Raised
[2]
Below).
POINT IV
[DEFENDANT'S] SENTENCE WAS MANIFESTLY
EXCESSIVE AND THE [TRIAL JUDGE] GAVE
INAPPROPRIATE WEIGHT TO THE
AGGRAVATING AND MITIGATING FACTORS.
POINT V
THE [TRIAL JUDGE] ERRED IN IMPOSING
CONSECUTIVE SENTENCES.
For the reasons that follow, we affirm in part, reverse in part, and remand for
resentencing in accordance with this opinion.
2
Because defendant acknowledges that he did not move for a new trial on the
grounds that the jury's verdict was against the weight of the evidence, we decline
to address this argument on appeal. R. 2:10-1; State v. Smith, 262 N.J. Super.
487, 511-12 (App. Div. 1993).
A-3867-18
7
I.
Defendant argues that the motion judge erred in denying his motion for a
Wade hearing regarding Arrington's pretrial identification. Defendant asserts
that the detective's failure to fully complete the worksheet warranted further
examination of the pretrial identification procedures.
To obtain a Wade hearing, "a defendant must present some evidence of
suggestiveness tied to a system variable which could lead to a mistaken
identification." State v. Anthony, 237 N.J. 213, 233 (2019) (citing State v.
Henderson, 208 N.J. 208, 288-89 (2011)). "System variables" include blind
identification, pre-identification instructions, lineup construction, feedback,
recording confidence, multiple viewings, showups, private actors, and other
identifications made. Henderson, 208 N.J. at 288-90. If a defendant proffers
such evidence, the State "must then offer proof to show that the proffered
eyewitness identification is reliable—accounting for system and estimator
variables." Id. at 289. The defendant may cross-examine the State's witnesses,
as well as present their own witnesses and evidence relating to system and
estimator variables. Ibid. At any point during the hearing, if the judge finds
that based on the testimony, defendant's threshold allegation of suggestiveness
is baseless, he or she may end the hearing. Id. at 290-91. "Under those
A-3867-18
8
circumstances, the [judge] need not permit the defendant or require the State to
elicit more evidence about estimator variables; that evidence would be reserved
for the jury." Id. at 291.
At all times, the burden of proof remains with the defendant to "prove a
very substantial likelihood of irreparable misidentification." Id. at 289. If the
judge determines that based on the totality of the circumstances the defendant
has "demonstrated a very substantial likelihood of irreparable misidentification,
the [judge] should suppress the identification evidence." Ibid. Our Court has
not "created bright-line rules that call for the 'suppression of reliable evidence
any time a law enforcement officer makes a mistake.'" Anthony, 237 N.J. at 239
(quoting Henderson, 208 N.J. at 303); see State v. Green, 239 N.J. 88, 109
(2019) (noting that the Court has not "suggest[ed] that any time a full record of
an identification is not preserved, the evidence must be excluded").
In denying defendant's motion for a Wade hearing, the motion judge
explained again that "there [was] just no evidence of suggestiveness in terms of
anything that was done here with system variables that would . . . warrant a . . .
Wade hearing." As to Bocchino, the motion judge explained that there was no
evidence to show that Bocchino "said something that would be suggestive" when
he asked Arrington to return to view more photos, leading the judge to conclude
A-3867-18
9
that it is "really pure speculation to think that . . . Bocchino somehow fed her
some information that would be so suggestive." And as to Greenwood, the judge
determined that there was no evidence of suggestiveness because Greenwood
was not involved in the investigation and performed a double-blind
identification procedure. Further, the judge noted that Greenwood checked
"yes" to question sixteen 3 on the worksheet, which confirmed that he asked
Arrington whether she previously spoke to anyone about the identi fication,
without writing anything further."
The judge correctly denied defendant's motion for a Wade hearing
concerning Arrington's pretrial identification because defendant failed to show
some evidence of suggestiveness. The judge did not abuse his discretion in
denying the motion.
II.
Defendant contends that the trial judge erred by admitting the white t-shirt
because no witness testified that the shirt defendant was wearing when he was
arrested was the same shirt the gunman was wearing at the time of the offenses.
3
Question sixteen reads: "Did you ask the witness whether he/she had
previously spoken to anyone (law enforcement or civilian) about the
identification?"
A-3867-18
10
"We defer to a trial [judge's] evidentiary ruling absent an abuse of
discretion." State v. Garcia, 245 N.J. 412, 430 (2021). "We will not substitute
our judgment unless the evidentiary ruling is 'so wide of the mark' that it
constitutes a 'clear error in judgment.'" Ibid. (quoting State v. Medina, 242 N.J.
397, 412 (2020)).
Evidence is relevant if it has "a tendency in reason to prove or disprove
any fact of consequence to the determination of the action." N.J.R.E. 401. In
making this determination, the trial judge "should focus on the logical
connection between the proffered evidence and a fact in issue," and "whether
the [evidence offered] renders the desired inference more probable than it would
be without the evidence." State v. G.V., 162 N.J. 252, 263 (2000) (alteration in
original) (citations and internal quotation marks omitted).
Even if evidence is deemed relevant, it may still be excluded. N.J.R.E.
403 permits a trial judge to exclude evidence "if its probative value is
substantially outweighed by the risk of: (a) [u]ndue prejudice, confusion of
issues, or misleading the jury; or (b) [u]ndue delay, waste of time, or needless
presentation of cumulative evidence." A trial judge "has broad discretion to
exclude evidence as unduly prejudicial pursuant to N.J.R.E. 403." State v.
A-3867-18
11
Jackson, 243 N.J. 52, 65 (2020) (quoting State v. Nantambu, 221 N.J. 390, 402
(2015)).
The trial judge declined to bar the admission of the white t-shirt into
evidence. The trial judge explained that she was unaware of any "requirement
that [a] piece of evidence should have been shown to the witness" prior to being
admitted into evidence. The trial judge then noted that she "anticipate[d] . . .
that before the State moves it into evidence that [it will] lay proper foundation
in terms of chain of custody and such that [the t-shirt will] probably be
authenticated." And finally, the trial judge noted that "[i]ssue[s] of facts are to
be determined by the jury," and as a result, "assuming it does go into evidence,
then it's up to the jury to determine whether, in fact, this is the same shirt." As
a result, the trial judge permitted the line of questioning regarding the white t -
shirt, determined that the t-shirt was properly authenticated, and admitted it into
evidence.
Arrington testified that defendant was wearing a white t-shirt at the time
of the carjacking. Burnett testified that defendant wore a white t-shirt with a red
and blue "scribbled" design on the front during the robbery. Bocchino arrested
defendant less than twenty-four hours after the carjacking and robbery wearing
a white t-shirt. Bocchino identified the shirt as the same shirt that defendant
A-3867-18
12
was wearing when he was arrested. Although neither Arrington nor Burnett
were asked to identify the white t-shirt entered into evidence as the shirt that
defendant was wearing at the time of the carjacking and armed robbery,
Bocchino properly authenticated the shirt, and the issue of whether the shirt was
the same shirt that defendant wore during the commission of the offenses was
an issue for the jury to determine. See State v. Cole, 229 N.J. 430, 450 (2017)
(noting that it is "the jury's province to assess the credibility of all of the
evidence"). The judge, therefore, did not abuse her discretion in admitting the
t-shirt into evidence.
III.
Defendant argues that the trial judge imposed a manifestly excessive
sentence and erred in imposing consecutive sentences.
A.
Defendant asserts that the trial judge improperly weighed aggravating
factors three, N.J.S.A. 2C:44-1(a)(3), six, N.J.S.A. 2C:44-1(a)(6) and nine,
N.J.S.A. 2C:44-1(a)(9), and improperly considered the fact that defendant did
not apologize to the victims during sentencing.
We review a trial judge's sentencing decision for an abuse of discretion.
State v. Jones, 232 N.J. 308, 318 (2018). This deferential standard applies only
A-3867-18
13
when "the trial judge follows the Code and the basic precepts that channel
sentencing discretion." State v. Trinidad, 241 N.J. 425, 453 (2020) (quoting
State v. Case, 220 N.J. 49, 65 (2014)). We will "affirm the sentence of a trial
[judge] unless: (1) the sentencing guidelines were violated; (2) the findings of
aggravating and mitigating factors were not 'based upon competent credible
evidence in the record;' or (3) 'the application of the guidelines to the facts' of
the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228
(2014) (second alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-
65 (1984)).
A trial judge "must identify any relevant aggravating and mitigating
factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." Case,
220 N.J. at 64 (citing State v. Fuentes, 217 N.J. 57, 72 (2014)). The judge must
then "determine which factors are supported by a preponderance of [the]
evidence, balance the relevant factors, and explain how it arrives at the
appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989). The judge's
application of these factors "must be supported by competent, credible evidence
in the record." Case, 220 N.J. at 64.
Judges may consider a defendant's "uninterrupted history of criminality"
in their determination of whether aggravating factor six is applicable. See State
A-3867-18
14
v. Dalziel, 182 N.J. 494, 502 (2005). Judges may also consider a defendant's
juvenile and municipal records, State v. Taylor, 226 N.J. Super. 441, 453-54
(App. Div. 1988), as well as a defendant's adult arrests which do not result in
convictions, State v. Rice, 425 N.J. Super. 375, 382 (App. Div. 2012) (noting
that adult arrests that do not result in convictions may be relevant to the sentence
imposed).
Aggravating factor nine is a "'qualitative assessment' of the risk of
recidivism, but 'also involve[s] determinations that go beyond the simple finding
of a criminal history and include an evaluation and judgment about the
individual in light of his or her history.'" Fuentes, 217 N.J. at 78 (alteration in
original) (quoting State v. Thomas, 188 N.J. 137, 153 (2006)). "'Deterrence has
been repeatedly identified in all facets of the criminal justice system as one of
the most important factors in sentencing,' and 'is the key to the proper
understanding of protecting the public.'" Id. at 78-79 (quoting State v.
Megargel, 143 N.J. 484, 501 (1996))
The trial judge found aggravating factors three, six, and nine applicable
and found mitigating factor seven applicable. As to factor six, the judge
considered the fact that defendant had been arrested as an adult on two prior
occasions and was arrested and pled guilty to third-degree eluding. A finding
A-3867-18
15
of aggravating factor six does not preclude a finding of mitigating factor seven;
a finding of aggravating factor six does not require that the judge ignore a
defendant's extended period of leading a law-abiding life prior to the criminal
offenses, and a finding of mitigating factor seven does not require that the judge
ignore a defendant's prior criminal record. See Case 220 N.J. at 66-67. As to
factor nine, the judge found that "there is a need to deter . . . defendant and
others from violating the law by committing robbery, carjacking with a
dangerous weapon and also the eluding and . . . defendant must be deterred from
engaging in dangerous criminal activity." Further, the judge found that "[t]he
public also must be deterred from such violent conduct." These considerations
did not result in the judge abusing her discretion in finding aggravating factor
nine applicable.
At the close of defendant's sentencing hearing, the judge stated:
I will note in considering the factors, one thing I did not
note on the record that although . . . defendant did
apologize to his family, he never apologized to the
victims. And that I think goes to his character and
attitude, I did not mention that. I meant to mention that
in my analysis.
The judge did not specify on the record to what aggravating factor this
observation applied. However, a judge may consider lack of remorse in
assessing whether aggravating factor three is applicable. See State v. Rice, 425
A-3867-18
16
N.J. Super. 375, 382 (App. Div. 2012) (determining that a sentencing judge did
not abuse his discretion where he found that aggravating factor three applied
where a defendant "lacked any remorse and took no responsibility for his
actions"). Such a finding is permissible based on the concern that a defendant
who denies guilt may be less amenable to rehabilitative and correctional
programs designed to reduce the risk of future offenses. See State v. Carey, 168
N.J. 413, 426-27 (2001) (affirming the trial judge's finding of aggravating factor
three in a vehicular homicide case where the defendant "denied responsibility
for the crash and did not acknowledge that he had an alcohol problem");
O'Donnell, 117 N.J. at 216 (affirming the trial judge's finding of aggravating
factor three where the defendant was "almost boastful" of his actions, which
suggested a lack of remorse). The judge did not abuse her discretion by
imposing defendant's sentence.
B.
Defendant asserts that the trial judge erred in imposing consecutive
sentences as to the carjacking and the robbery charges based on the State's theory
that defendant was engaged in a "crime spree."
When reviewing "consecutive-versus-concurrent sentencing," we
"employ the general shock-the-conscience standard for review of the exercise of
A-3867-18
17
sentencing discretion." State v. Torres, 246 N.J. 246, 272 (2021). Judges are
permitted to impose consecutive sentences where multiple sentences of
imprisonment are imposed and after considering the Yarbough factors. See
State v. Yarbough, 100 N.J. 627, 643-44 (1985), superseded by statute in part,
N.J.S.A. 2C:44-5(a), as recognized in State v. Cuff, 239 N.J. 321, 348 n.4 (2019)
(noting the statute's elimination of a sixth factor originally set forth in Yarbough,
which set an outer limit on the overall cumulation of consecutive sentences).
Our Court directed sentencing judges to consider the following factors:
(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
[judge] 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;
A-3867-18
18
(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.
[Torres, 246 N.J. at 264 (quoting Yarbough, 100 N.J. at
643-44).]
The Yarbough factors generally focus on "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." Carey, 168 N.J. at 423 (quoting State v. Baylass, 114 N.J.
169, 180 (1989)). The factors are "qualitative, not quantitative; applying them
involves more than merely counting the factors favoring each alternative
outcome." Cuff, 239 N.J. at 348.
Sentencing judges should be "mindful that aggravating and mitigating
factors and Yarbough factors, as well as the stated purposes of sentencing in
N.J.S.A. 2C:1-2(b), in their totality, inform the sentence's fairness." Torres, 246
N.J. at 272. The judge "must explain [his or her] decision to impose concurrent
or consecutive sentences in a given case" because "[a] statement of reasons is a
A-3867-18
19
necessary prerequisite for adequate appellate review of sentencing decisions."
Cuff, 239 N.J. at 348 (second alteration in original) (quoting State v. Miller, 108
N.J. 112, 122 (1987)).
The judge sentenced defendant to an aggregate sentence of twenty-five
years with twenty-one years and three months of parole ineligibility. The judge
determined that counts two and six were to run consecutively. The judge placed
her reasons for imposing consecutive terms on the record:
Now, I find that [c]ounts [two] and [c]ount [six] will
run consecutive to each other following the Yarbough
criteria which I will explain now. As to Yarbough
3(a)[,](c), and (d)[,] the crimes and objectives are
predominantly independent of each other in the present
case. There were separate acts of violence and they
involve multiple victims. On August 31st at
approximately 5[:00] a.m. . . . Arrington was parked in
the parking lot of her home after she had finished work
when she was abruptly carjacked at gun point by the
defendant. On September 1, 2016[,] at approximately
1:20 a.m.[,] the other victim . . . Burnett was walking
on the street at a different location from . . . Arrington's
home or parking lot after he had finished work and he
was robbed at gun point by . . . defendant.
Therefore, it is clear that the carjacking and the
armed robbery are two different crimes, two different
victims, two different methods of operation, two
separate occasions, predominantly independent of each
other. It is clear to the [c]ourt from the record that both
victims of the crimes were unrelated to each other. And
that both victims of the crimes were subject and
suffered at the hand of . . . defendant.
A-3867-18
20
As to 3(b)[,] the crimes involve separate acts and
threats of violence, again it is clear to the [c]ourt that
carjacking was committed at gun point and the robbery
was also committed at gun point. There were victims
and high risk of threats to their safety and to their life.
[D]efendant posed a danger to people surrounding in
the area. . . . Arrington, she was by herself but
nevertheless the danger was posed to her and as to . . .
Burnett there was danger to him as well as other people
who may have been in the area. . . . [T]he incident
occurred in an open public street although there was not
much evidence but nevertheless there was the
involvement of the gun and the dangers that are
inherent with that, the use, illegal use of a gun.
In both . . . Carey . . . and . . . State v. Molina,
168 N.J. 436 [(2001)], the Court found that the
Yarbough criteria applied and it was not abuse of
discretion to impose consecutive sentences when [an]
intoxicated . . . driver kills or injures more than one
victim. In this case as I have stated there was more than
one victim[,] both offenses were separate and distinct
from each other. And as such as I indicated I find that
[c]ounts [two] and [c]ount [three] shall run
consecutive[ly]. Otherwise it would be the result of
free crime which the . . . Yarbough factors are intended
to prevent.
The judge adequately explained her reasons for imposing consecutive
sentences. The carjacking and the armed robbery were different crimes,
involving different victims, at different locations. The robbery of Burnett posed
further risks of violence to those that may have been in the area. Despite the
State's characterization of the series of events as a "crime spree," the judge was
A-3867-18
21
not required to sentence defendant to concurrent sentences because the offenses
were committed in close temporal proximity. See State v. Swint, 328 N.J. Super.
236, 264 (App. Div. 2000) (noting that even where offenses have a "unity of
specific purpose," are "somewhat interdependent of one another," and are
"committed within a short period of time," a concurrent sentence is not
required); Carey, 168 N.J. at 427-28 (holding that "a sentencing [judge] may
impose consecutive sentences even though a majority of the Yarbough factors
support concurrent sentences").
We are, however, constrained to remand for resentencing. While this
appeal was pending, our Supreme Court issued its opinion in Torres, which
addresses the standards for imposing consecutive sentences. 246 N.J. at 268.
The Court held that "essential to a proper Yarbough sentencing assessment" is
"[a]n 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." Ibid. Here, the judge imposed consecutive sentences
and stated that she "considered the overall fairness of the sentence" without
further explanation. As a result, a remand for resentencing is required.
Affirmed in part, reversed in part, and remanded for resentencing in
accordance with this opinion. We do not retain jurisdiction.
A-3867-18
22