STATE OF NEW JERSEY VS. KESHAWN MALONE (15-04-0466, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1339-18
STATE OF NEW JERSEY,
Plaintiff-Respondent.
v.
KESHAWN MALONE, a/k/a
KESHAW MALONE,
Defendant-Appellant.
__________________________
Submitted May 11, 2021 – Decided July 16, 2021
Before Judges Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 15-04-0466.
Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Keshawn Malone and three codefendants executed their
planned robbery of Erick Lopez, his father Jeronimo Lopez and five guests in
the Lopez apartment, during which Jeronimo was shot and killed.1 Tried
separately, defendant was convicted by jury of second-degree conspiracy to
commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2(b)(2) (count one);
second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:15-1 (count two); second-degree burglary, N.J.S.A. 2C:2-6 and N.J.S.A.
2C:18-2 (count three); first-degree robbery, N.J.S.A. 2C:2-6 and N.J.S.A.
2C:15-1 (counts four, five, six, seven, eight, and ten); first-degree murder,
N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3(a)(1), (2) (count eleven); first-degree
felony murder (burglary), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3(a)(3) (count
twelve); first-degree felony murder (robbery), N.J.S.A. 2C:2-6 and N.J.S.A.
2C:11-3(a)(3) (count thirteen); second-degree possession of a weapon for an
unlawful purpose (handgun), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a) (count
seventeen); second-degree unlawful possession of a weapon (handgun without
the requisite permit, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(b) (count eighteen);
1
Our use of given names is for clarity. We mean no disrespect or familiarity
by our practice.
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and third-degree hindering apprehension, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:29-
3(b)(1) (count twenty-two).
He appeals from the judgment of conviction and sentence, arguing:
POINT ONE
THE TRIAL JUDGE'S CONCLUSION THAT
DEFENDANT'S WAIVER OF HIS RIGHT TO
REMAIN SILENT DURING A CUSTODIAL
INTERROGATION WAS VOLUNTARY WAS NOT
BASED ON A TOTALITY OF CIRCUMSTANCES.
POINT TWO
FOR THE LAW ENFORCEMENT EXCEPTION OF
THE NEW JERSEY WIRETAPPING ACT TO
APPLY, THE STATE MUST PRODUCE THE
SUBPOENA AUTHORIZING IT TO OBTAIN A
DEFENDANT'S JAILHOUSE COMMUNICATIONS
OR A RELIABLE EXPLANATION WHY THE
SUBPOENA CANNOT BE PRODUCED.
POINT THREE
THE TRIAL JUDGE ERRED IN ADMITTING INTO
EVIDENCE THE JAILHOUSE COMMUNICATIONS
ON GROUNDS OF BOTH FUNDAMENTAL
FAIRNESS AND HEARSAY.
POINT FOUR
THE TRIAL JUDGE'S DECISION TO
CONSECUTIVELY SENTENCE DEFENDANT FOR
THE ROBBERIES AND MURDER WAS AN ABUSE
OF DISCRETION.
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POINT FIVE
THE PERIOD OF PAROLE INELIGIBILITY UNDER
NERA FOR A SENTENCE ON MURDER IS
COMPUTED ON THE WHOLE TERM IMPOSED.
We affirm the conviction but remand for resentencing.
I
During the hearing on defendant's motion to suppress the statement he
provided to detectives from the Bergen County Prosecutor's Office (BCPO), the
trial judge heard testimony from then-Sergeant James McMorrow 2 who
interviewed defendant with Fairview police Captain Martin Kahn following
defendant's arrest two days after the crimes. As we "must uphold the factual
findings underlying the trial court's decision so long as those findings are
supported by sufficient credible evidence in the record," State v. Rockford, 213
N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)), we
glean the pertinent supported facts from the trial judge's written decision.
"Those factual findings are entitled to deference because the motion judge,
unlike an appellate court, has the 'opportunity to hear and see the witnesses and
to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v.
Gonzales, 227 N.J. 77, 101 (2016) (quoting State v. Johnson, 42 N.J. 146, 161
2
Apparently, McMorrow was promoted during the pendency of the case.
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(1964)). That deference is similarly accorded when a trial judge makes factual
findings based on video and audio recordings entered in evidence. State v.
Tillery, 238 N.J. 293, 314 (2019); State v. S.S., 229 N.J. 360, 379-81 (2017).
We review those factual findings the judge made from McMorrow's testimony
and the judge's review of defendant's videotaped statement, photographs and the
Miranda3 card from which McMorrow read defendant his rights immediately
after he was handcuffed.
Defendant was arrested with two of his codefendants after McMorrow
stopped a 2004 Jeep, Freedom Edition, with distinctive chrome roof-racks and
running boards, that looked similar to a vehicle seen on surveillance footage
near the crime scene. McMorrow handcuffed defendant, placed him in the rear
of an unmarked police vehicle, told defendant detectives wanted to speak to him
at the BCPO and read Miranda rights and concomitant waiver of rights to
defendant who agreed to speak to detectives. McMorrow brought defendant to
the BCPO in Paramus without further conversation about the crimes.
McMorrow placed defendant in a BCPO interview room at 1:51 p.m.,
activated a recording device and then left the interview room to bring defendant
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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water he had requested. While alone, defendant made a personal call on his cell
phone as depicted on the recorded video.
McMorrow returned at about 2:11 p.m. with Kahn and a water bottle for
defendant. Although McMorrow testified the Miranda rights form which he read
to defendant could not be located at the time of the hearing, the judge "observe[d
on the videotape] defendant reading, initialing[] and signing the writing
purporting to be the . . . form situated on the desk in the interview room."
At 2:20 p.m., general questions followed until about 3:04 p.m. when
McMorrow informed defendant about the homicide investigation; defendant
denied any involvement in the crime. Defendant requested a bathroom break at
approximately 3:07 p.m. Breaks in questioning occurred at about 3:39 p.m.,
during which defendant was left alone in the room for approximately five
minutes, and at 3:58 p.m., during which defendant used the restroom. Following
the last break, defendant remained alone in the interview room until 5:12 p.m.,
when McMorrow returned to the interview room and informed defendant he was
going to be taken to the Bergen County Sheriff's Department in Hackensack for
the execution of a search warrant for buccal swab samples, fingerprints and
photographs. Two minutes later, defendant was removed and transported for
processing which was delayed for administrative reasons.
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On the return trip to the BCPO, McMorrow picked up fast food at a drive-
through window and returned defendant to the BCPO interview room at 8:20
p.m. McMorrow activated the video-recording device; the two ate their meals.
McMorrow testified he did not discuss the case with defendant to, from or at the
Sheriff's Office, but began to discuss it toward the end of their meal.
At 8:42 p.m., defendant admitted participating in the robbery but denied
possessing a weapon or recollecting a shooting. The detectives left defendant
alone in the interview room at 9:03 p.m., returning forty-five minutes later to
resume questioning, during which defendant acknowledged "someone . . .
provided the information that a card game was occurring where $10,000 would
be available to be stolen" and that "he had a black handgun with him when he
entered the apartment building, although he did not shoot the victim."
After defendant declined a restroom break at 10:38 p.m., the detectives
again left the interview room. They returned at 11:15 p.m. and asked defendant
to identify from a series of photographs the person who set up the robbery.
Defendant admitted striking Erick with a pistol to render him compliant during
the robbery. The detectives exited the room at 11:41 p.m.; defendant was seen
resting on the floor at 11:46 p.m. before reclining on one chair with his feet on
another.
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McMorrow returned to the interview room at 12:30 a.m. and advised
defendant one of the codefendants admitted shooting Jeronimo. Questioning
ceased at 12:40 a.m. and defendant was placed in a holding cell.
The trial judge concluded defendant's statements were admissible
because, under the totality of the circumstances, "the State [had] demonstrated
beyond a reasonable doubt that [defendant] was apprised of his Miranda rights,
knowingly and intelligently waived those rights, and provided voluntary
statements to the detectives during the course of the custodial interrogation."
Defendant argues "the time lapse between his initial Miranda warnings
and the more pointed questioning that led to his admissions was so protracted as
to render the initial warnings stale, thereby requiring the law enforcement
officers to readminister them." Defendant urges us to apply the Third Circuit's
two-pronged test for determining "whether a lapse of time renders Miranda
warnings stale":
(1) At the time the Miranda warnings were provided,
did the defendant know and understand his rights? (2)
Did anything occur between the warnings and the
statement, whether the passage of time or other
intervening event, which rendered the defendant unable
to consider fully and properly the effect of an exercise
or waiver of those rights before making a statement to
law enforcement officers?
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[United States v. Pruden, 398 F.3d 241, 246-47 (3d Cir.
2005) (quoting United States v. Vasquez, 889 F. Supp.
171, 177 (M.D. Pa. 1995)).]
We have not found, and neither party cites to, a New Jersey case that
specifically adopted the two-pronged Pruden-Vasquez test espoused by
defendant. Indeed our Supreme Court rejected a "bright-line approach"
suggested by our comment in State v. Dispoto, 383 N.J. Super. 205, 214-15
(App. Div. 2006), that pre-custodial Miranda warnings were per se ineffective
and had to in all cases be readministered post-arrest for a waiver to be considered
valid, State v. Dispoto, 189 N.J. 108, 124 (2007). The Court instead held "[a]
totality-of-the-circumstances approach is preferable in that it encourages
warnings when police question a suspect and allows law enforcement officials
to pursue their investigations, subject to later review by a neutral court." Ibid.To be sure, the Pruden-Vasquez prongs are included in a determination of
the voluntariness of a statement which requires a review of "the totality of the
circumstances surrounding the custodial interrogation," State v. A.M., 237 N.J.
384, 398 (2019); see also State v. Tillery, 238 N.J. 293, 316 (2019), and a
determination of whether defendant's decision to waive his rights resulted from
an impermissibly overborne will, see State v. Burris, 145 N.J. 509, 536 (1996).
Our Supreme Court has held:
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Every case must turn on its particular facts. In
determining the issue of voluntariness . . . a court
should assess the . . . characteristics of the suspect and
the details of the interrogation. Some of the relevant
factors include the suspect's age, education and
intelligence, advice as to constitutional rights, length of
detention, whether the questioning was repeated and
prolonged in nature and whether physical punishment
or mental exhaustion was involved. A suspect's
previous encounters with the law has been mentioned
as an additional relevant factor.
[State v. Miller, 76 N.J. 392, 402 (1978) (citations
omitted).]
"The time lapse between the reading of Miranda rights and the actual
questioning or incriminating oral statement" is another factor to be considered.
Tillery, 238 N.J. at 317 (citation and internal quotation marks omitted). But the
Dispoto Court highlighted the importance of what occurs during that time lapse:
[W]hen . . . pre-custodial warnings have been given to
a defendant as part of a continuing pattern of
interactions between the defendant and the police, and
during that continuing sequence of events nothing of an
intervening nature occurs that would dilute the
effectiveness of the warning that had been given, then
there would appear to be no need to require that another
warning be given. Such determinations are better
suited to fact-based assessments rather than being made
subject to bright-line pronouncements.
[189 N.J. at 124-25.]
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Defendant argues the trial judge failed to consider the totality of the
circumstances including: "whether the more[-]than[-]four-hour interval
between the first and second parts of the custodial interrogation affected the
twenty-one[-]year[-]old defendant's understanding of the seriousness of the
situation, rendering him unable to appreciate his waiver . . . ."; the periods during
which defendant was isolated in the interview room; the change in questioning
"from one of general information about defendant's pedigree to one of a more
pointed inquiry about the robbery and murder"; his ignored 3:07 p.m. request
for a bathroom break; and what occurred during the long processing at the
Sheriff's Office. We disagree.
From the videotape of defendant's statement, the trial judge deduced that
defendant "was given Miranda warnings both verbally and in writing. Despite
the loss or misplacement of the Miranda form, the videotaped evidence
corroborated McMorrow's testimony that the rights were read to [defendant]; he
understood them; and agreed to speak to the detectives, waiving those rights."
We note defendant does not dispute that he received Miranda warnings when he
was first arrested after the motor vehicle stop.
Moreover, the judge considered the total length of the questioning but
found "[t]he total period of actual questioning in the interview room was
A-1339-18
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approximately three and one-half hours, excluding bathroom breaks, the meal
break, transport to and from the Sheriff's Office, and processing at the Sheriff's
Office." Defendant was provided food and drink and was offered bathroom
breaks, one of which he declined; defendant does not assert, and the record does
not disclose, that he was in any discomfort. Nor is there any proof to contradict
McMorrow's testimony that no discussions about the case took place during the
break for processing at the Sheriff's Office.
Although the trial judge did not mention defendant's age, education or
familiarity with the criminal justice system, defendant has not proffered any
persuasive argument that those factors impacted the voluntariness of his
statement. He was a twenty-one-year-old adult. He was not, as he contends,
"inexperience[d]"; he had a five-year offense history, including juvenile
adjudications for robbery and municipal court convictions for obstruction and
drug paraphernalia possession. And, whatever his educational level, he
appeared fully cognizant on the videotape. Indeed, there is nothing in the record
that anything occurred during the entire period defendant was questioned,
including the times he was left alone, that impacted his Miranda rights waiver.
The trial judge found:
During the videotape admitted into evidence, the
[judge] observed [defendant's] demeanor to be calm
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and stoic. He did not appear nervous or fidgety while
seated at the table across from the detectives. The
videotape evidence reveals no evidence that physical
threats or mental coercion was employed by the
detectives during the interview.
Although [defendant] was observed lying on the floor
and on two chairs while left alone during the latter part
of the interview, the [judge] is satisfied that during the
entire time he was in custody, he was alert, oriented to
time and place, and provided direct, responsive answers
to the questions posed to him.
Those findings also militate against defendant's contention that the change
in questioning from general to more "pointed" questions about the crimes
impacted the totality of the circumstances. Even if the detectives' variation in
questioning was not a mere progression in their investigation, but a designed
attempt to elicit defendant's statement, "unlike the use of physical coercion, use
of psychologically oriented interrogation techniques is not inherently coercive."
State v. Cook, 179 N.J. 533, 562-63 (2004). The trial judge's findings manifest
that defendant's will was not overborne by "very substantial psychological
pressures." Id. at 563 (citation and internal quotation marks omitted).
Finally, we reject defendant's attempt to analogize our holding in State v.
Milledge, 386 N.J. Super. 233 (App. Div. 2006). Defendant was immediately
Mirandized upon arrest and again before any questioning began, and there was
A-1339-18
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no reason for the detectives to readminister Miranda warnings where defendant
never invoked any right.
We discern no reason to disturb the trial judge's denial of defendant's
motion to suppress his statement. The State met its burden and proved beyond
a reasonable doubt that defendant knowingly, intelligently and voluntarily
waived his Miranda rights, see State v. Hreha, 217 N.J. 368, 383 (2014); State
v. Nyhammer, 197 N.J. 383, 400-01 (2009), and defendant's statement was
voluntary and not the product of an overborne will, State v. Galloway, 133 N.J.
631, 654-55 (1993).
II
Defendant argues the trial judge erred by admitting recordings of
telephone calls defendant made while incarcerated in the Bergen County Jail—
which the State introduced, contending defendant implicated himself in the
crimes during the calls—because the officer who turned over those recordings
to the BCPO did not produce the subpoena he received for their turnover or
explain why he could not produce it.
Defendant skews our holding in State v. Jackson, 460 N.J. Super. 258, 273
(App. Div. 2019), aff'd o.b., 241 N.J. 547 (2020), where we held "sharing the
information with another law enforcement agency under the authority of a grand
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jury subpoena is not a violation of the" New Jersey Wiretapping and Electronic
Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37, where the
subject of the subpoena was recordings of monitored inmate telephone calls. We
determined the creation of the recordings was not an "interception" within the
purview of the Act or Title III of the Federal Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. §§ 2510-2520. Ibid. We held it was logical that
"sharing the information with another law enforcement agency under the
authority of a grand jury subpoena [was] not a violation of the Act." Ibid. We
did not hold, and no law requires, the State to produce the subpoena in order for
recordings of inmate conversations to be admitted in evidence.
Bergen County Sheriff's Officer Jeffrey Ramirez, assigned to the Jail
Security and Security Threat Group, testified at a N.J.R.E. 104 hearing that he
turned over the recordings to the BCPO after receiving a subpoena. Defendant
contends the trial judge did not make a credibility finding regarding Ramirez's
testimony, but nothing has been proffered that would cast doubt on Ramirez's
statement. In fact, defense counsel stated there was no reason for him to doubt
the officer's veracity when he testified he received the subpoena.
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The trial judge did not abuse his discretion when he admitted the
recordings though the subpoena was not produced. See State v. Granskie, 433
N.J. Super. 44, 48 (App. Div. 2013).
III
Nor did the trial judge abuse his discretion in rejecting defendant's
fundamental fairness and hearsay objections to the recorded telephone
conversations, which defendant reprises on appeal.
The conversations revealed to the jury that defendant was incarcerated
from May 5 to May 11, 2014. But that did not, as defendant contends, deny him
a fair trial. Any prejudice from that disclosure was remediated by the judge's
instruction to the jury:
One. You heard, obviously, these are [j]ail calls. You
saw the statement by [defendant] that was some seven
hours or whatever long. And towards the end, he was
advised that he was going to be arrested and put in
[j]ail.
[Y]ou shouldn't consider the fact that he was arrested
on May 5th and these calls go through May 11th that—
he was in [j]ail, that means he's guilty of any offense at
all.
....
[Y]ou . . . should not in any way presume or assume
that he's guilty of any offense. Obviously, if
somebody's arrested—charged like this, they're going
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to be . . . confined in [j]ail. And at least for this period
of time that's what these calls—that's what this
evidence is for.
But don't at all, in any way take the fact that he was
incarcerated back in 2014 indicate that he's guilty of
anything today.
The jury is presumed to have followed that instruction. See State v. Burns, 192
N.J. 312, 335 (2007) ("One of the foundations of our jury system is that the jury
is presumed to follow the trial court's instructions.").
Defendant's hearsay argument does not challenge the trial judge's ruling
that the recordings of defendant's statements were admissible under N.J.R.E.
803(b). He contends the recordings should have been excluded because they
had the capacity to "divert the jurors' attention from the proofs" and because
"the incoherent nature of the jailhouse communications . . . minimized their
probative value" and "heightened the prejudice attached to the jurors' knowledge
that defendant was in custody."
The trial judge admitted the recordings as a hearsay exception under
N.J.R.E. 803(b)(1). Defendant did not request a Driver4 hearing to contest (1)
"the [recording] device was capable of taking the conversation or statement";
(2) "its operator was competent"; (3) "the recording is authentic and correct";
4
State v. Driver, 38 N.J. 255, 287 (1962).
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(4) "no changes, additions or deletions have been made"; and (5) "in instances
of alleged confessions, that the statements were elicited voluntarily and without
any inducement." 38 N.J. at 287. Defendant does not argue the recordings were
inaudible or unintelligible because of a recording defect; rather he argues
defendant's statements could be interpreted in a number of ways. The judge did
not err in leaving that interpretation to the jury. The judge found the recordings
relevant in that one of those interpretations was that defendant made admissions
related to the crimes. Again, the judge's instruction cured any prejudice.
Lastly, we determine defendant's arguments that the judge erred because
the recordings were unreliable, reiterating they were incoherent and that the PIN
numbers used to identify each inmate caller were "often sold or stolen," are
without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Threshold reliability was established by Ramirez who testified he had heard
defendant speak on "numerous occasions," knew his "distinctive voice" and
recognized the voice of the caller on the recordings as defendant. See State v.
Gallagher, 286 N.J. Super. 1, 15-16 (App. Div. 1995). We discern no error in
the trial judge's admission of the recordings.
IV
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The trial judge, after mergers, imposed prison terms of thirty-eight years
with thirty years parole ineligibility, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, on count eleven for first-degree murder; fifteen-
year terms subject to NERA on each of the first-degree robbery counts—five
through eight and ten; 5 seven years with forty-two months of parole ineligibility,
subject to NERA and the Graves Act, N.J.S.A. 2C:43-6(c), on count eighteen for
second-degree unlawful possession of a handgun; and four years on count
twenty-two for third-degree hindering apprehension. The judge determined the
terms for all robberies were concurrent to each other but consecutive to the term
imposed for murder.
Defendant challenges that determination arguing the judge failed to take
into account that the objectives of the robberies and murder were not distinct
because
[t]he scheme was to abscond with the pot of money
found at the high-stakes poker game. Indeed, the
co[]defendants brought weapons to the apartment.
Because the co[]defendants used weapons to
accomplish their task, it is difficult to conceive for
5
The judge merged count four charging first-degree robbery into count twelve
charging first-degree felony murder because they both pertained to Jeronimo; in
turn, he merged count twelve into count eleven. Defendant was acquitted on
count nine charging first-degree robbery of a separate victim at the Lopez
apartment.
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purposes of determining whether the sentences should
be served consecutive to one another that the objectives
of the two crimes were predominantly independent
from the other.
Defendant also argues the robberies and murder occurred "during a single period
of aberrant behavior where both crimes were committed at the same time and
place." He adds, he was not "the shooter" who killed Jeronimo and the trial
judge did not properly consider his role.
Trial courts "have discretion to decide if sentences should run
concurrently or consecutively." State v. Miller, 205 N.J. 109, 128 (2011); see
also N.J.S.A. 2C:44-5(a). In State v. Yarbough,6 our Supreme Court established
factors that a sentencing court must consider when deciding whether to impose
consecutive sentences:
(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;
6
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), rehearing
denied, 244 N.J. 502 (2020) (noting the statute's elimination of a sixth factor
originally set forth in Yarbough that set an outer limit on the overall cumulation
of consecutive sentences).
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(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[.]
"When a sentencing court properly evaluates the [remaining] Yarbough factors
in light of the record, the court's decision will not normally be disturbed on
appeal." Miller, 205 N.J. at 129.
The trial judge recognized he was required to set forth reasons for
imposing consecutive sentences and recited the Yarbough standards, concluding
"the purpose underlying the specific standards that I'm about to [impose] is to
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achieve the [New Jersey Code of Criminal Justice's] paramount sentencing goals
that the punishment should fit the crime and not the criminal, and that th ere's a
predictable degree of uniformity in sentencing." The judge, however, failed to
review each of the factors as they relate to defendant's crimes, stating only
that the crime of robbery was distinct and independent
from the . . . actual murder charge, that the robbery
itself was a separate act of violence. Each of these
victims, and particularly the victim that this defendant
encountered, was struck with a weapon. Many of the
other victims were likewise brutalized, although not
murdered, and this defendant, as an accomplice, is
responsible for all of the robberies. I find, therefore,
weighing the [Yarbough] factors, that the robbery
charges should be consecutive to the murder charge.
This general statement was insufficient, especially considering the judge found
"all of the . . . robbery charges . . . are concurrent to each other, it's all one
action."
We do not imply the judge should not have imposed consecutive
sentences; we take no position how the judge should exercise his sentencing
discretion. But we determine the judge abused his discretion, see State v. Jones,
232 N.J. 308, 318 (2018), by failing to carefully analyze each of the pertinent
factors in relation to defendant's actions toward each of the victims of the
robberies to which the judge chose to impose a consecutive sentence. We further
note the judge, in "performing the Yarbough fairness assessment must be
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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" which "cannot be divorced from consideration
of the person on whom it is imposed. . . . Assessing the overall fairness of a
sentence requires a real-time assessment of the consequences of the aggregate
sentences imposed." State v. Torres, ___ N.J. ___, ___ (2021) (slip op. at 32,
34).
On remand, the trial judge should provide "an explanation for the overall
fairness of [the newly imposed State prison] sentence . . . to 'foster[] consistency
in . . . sentencing in that arbitrary or irrational sentencing can be curtailed and,
if necessary, corrected through appellate review.''' Id., (slip op. at 33) (alteration
in original) (quoting State v. Pierce, 188 N.J. 155, 166-67 (2006)).
The State concedes defendant's argument that the judge erred when he
seemingly imposed NERA's parole ineligibility period only on that portion of
the thirty-eight-year sentence that exceeded the thirty-year period mandated by
N.J.S.A. 2C:11-3(b)(1), stating the term was "[thirty-eight] years on the murder
charge, with a period of [thirty] years that is mandatory, plus NERA, so it's
approximately about [thirty-six]—[thirty-five, thirty-six] years he's going to
have to serve before being eligible for parole on the murder charge ." When
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sentencing a defendant for, among other crimes, first-degree murder, NERA
requires the judge to "fix a minimum term of 85% of the sentence imposed,
during which the defendant shall not be eligible for parole." N.J.S.A. 2C:43 -
7.2(a) (emphasis added). "[T]he parole ineligibility provisions of NERA . . .
apply to the whole term imposed for murder, not just the period in excess of the
mandatory thirty-year parole disqualifier which is required for any sentence for
murder." State v. Rambo, 401 N.J. Super. 506, 522 (App. Div. 2008); see also
N.J.S.A. 2C:11-3(b). On remand, the judge should clarify that the NERA parole
ineligibility period applies to the entire term.
Defendant's conviction is affirmed; remanded for resentencing. We do
not retain jurisdiction.
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