STATE OF NEW JERSEY v. KEITH V. CUFF (13-05-1446, CAMDEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-1451-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH V. CUFF,
a/k/a KEITH CUFF, and
KEITH V. CUFF, JR.,
Defendant-Appellant.
_______________________
Argued January 5, 2022 – Decided March 31, 2022
Before Judges Gilson, Gooden Brown, and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 13-05-1446.
Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Tamar Y. Lerer, of counsel
and on the briefs).
Daniel Finkelstein, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Catlin A. Davis, Deputy
Attorney General, of counsel and on the brief).
PER CURIAM
This is defendant Keith Cuff's second appeal. A jury convicted defendant
of multiple crimes arising from several home invasions, robberies, kidnappings ,
and the theft of a vehicle. Defendant was originally sentenced to an aggregate
prison term of ninety-eight years, with more than sixty-six years of parole
ineligibility.
The New Jersey Supreme Court affirmed defendant's convictions, vacated
his sentence, and remanded for resentencing. State v. Cuff, 239 N.J. 321, 350-
52 (2019). The Court directed the trial court to reconsider certain consecutive
sentences and the overall fairness of the aggregate sentence. Ibid. On remand,
defendant was sentenced to an aggregate prison term of seventy years, with just
under fifty-eight years of parole ineligibility. In this second appeal, defendant
challenges his sentence, arguing that it is a de facto life sentence that is
excessive. Because the trial court followed the Supreme Court's instructions in
resentencing defendant, and because we cannot say the resulting aggregate
sentence shocks our judicial conscience given the multiple crimes committed by
defendant, we affirm.
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I.
The Supreme Court and we have detailed the facts and procedural history
in prior opinions. Accordingly, we will summarize only the facts relevant to
this appeal, focusing on defendant's convictions and sentences.
Defendant was indicted for fifty-five crimes arising out of six incidents:
five residential robberies and the stop of a stolen vehicle. The jury convicted
defendant of nineteen offenses related to four of those incidents: three of the
robberies and the stolen vehicle. Specifically, defendant was convicted of two
counts of first-degree armed robbery, N.J.S.A. 2C:15-1; three counts of first-
degree kidnapping, N.J.S.A. 2C:13-1(b)(1); one count of second-degree
conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1;
two counts of second-degree conspiracy to commit "robbery and/or kidnapping,"
N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:13-1(b)(1) (counts fifteen
and forty-six); three counts of second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4; one count of second-degree burglary,
N.J.S.A. 2C:18-2; two counts of fourth-degree aggravated assault with a firearm,
N.J.S.A. 2C:12-1(b)(4); two counts of fourth-degree unlawful taking of means
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of conveyance, N.J.S.A. 2C:20-10; and a disorderly persons offense of false
imprisonment, N.J.S.A. 2C:13-3.
On defendant's first appeal, we affirmed his convictions except for the two
convictions for second-degree conspiracy to commit "robbery and/or
kidnapping." State v. Cuff, No. A-4419-15 (App. Div. Feb 2, 2018) (slip op. at
2). We held that the use of "and/or" could have led to jury confusion and a non-
unanimous verdict on counts fifteen and forty-six. Ibid. We, therefore, vacated
those convictions. Ibid. We then affirmed the remaining sentences. Id. at 10.
The Supreme Court accepted certification to address two issues: (1) the
failure to include a question concerning the lesser-included offense of second-
degree kidnapping on the verdict sheet; and (2) the sentence. Cuff, 239 N.J. at
329-30. The Court affirmed defendant's three convictions of first-degree
kidnapping, holding that the omission of the question concerning second-degree
kidnapping from the verdict sheet was not plain error. Id. at 346-47.
The Court then addressed defendant's sentences. The Court did not find
any of the individual sentences excessive. Id. at 350. Instead, the Court focused
on whether certain sentences should have been run concurrently rather than
consecutively. Given our ruling vacating the convictions for second-degree
conspiracy to commit "robbery and/or kidnapping," the Court evaluated the
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three separate criminal episodes giving rise to defendant's remaining seventeen
convictions. Id. at 349-52. Those criminal episodes included: (1) a robbery
and kidnappings at a home on February 28, 2011; (2) a robbery and theft of a
car committed at a home on March 3, 2011; and (3) an incident on March 29,
2011, involving the stop of a car, which turned out to be a stolen car and where
weapons were discovered. Id. at 334.
The Court found the evidence supported the trial court's findings that the
crimes "were independent of one another," involved distinct objectives and
"separate acts of violence or threats of violence," and "were committed at
different times and in different locations." Id. at 349. Accordingly, the Court
affirmed the trial court's decision to run the sentences from those different
episodes consecutively. Ibid.
The Court then held: "In sentencing defendant to consecutive terms for
offenses committed within a single criminal episode, however, the trial court set
forth findings that do not satisfy [State v. Yarbough, 100 N.J. 627 (1985)],
warranting a remand for resentencing with respect to those offenses." Id. at 350.
The Court identified four specific convictions for the trial court to reconsider:
(1) defendant's conviction for second-degree unlawful possession of a weapon
in connection with the February 28, 2011 incident; (2) the sentence for second -
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degree unlawful possession of a weapon in connection with the March 3, 2011
incident; and (3 & 4) the sentences for second-degree unlawful possession of a
weapon and fourth-degree unlawful taking of a means of conveyance, both
arising out of the March 29, 2011 incident. Id. at 350-52. In addition, the Court
directed the trial court to reconsider the overall fairness of defendant's sentence.
Id. at 352.
On January 24, 2020, the trial court conducted a hearing and resentenced
defendant. In connection with the resentencing, the State agreed to dismiss
counts fifteen and forty-six, which were the two charges of second-degree
conspiracy to commit "robbery and/or kidnapping." Accordingly, defendant
was resentenced on seventeen convictions.
In imposing the new sentences, the trial court reviewed and analyzed
defendant's multiple convictions in relationship to the more limited convictions
and pleas of defendant's codefendants. In that analysis, the trial court addressed
and rebutted defendant's argument that his sentences were disproportionately
high compared to the codefendants' sentences.
The trial court also re-evaluated all the aggravating and mitigating factors.
The court found aggravating factors three, the likelihood of reoffendin g,
N.J.S.A. 2C:44-1(a)(3); six, defendant had a criminal record, N.J.S.A. 2C:44-
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1(a)(6); and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The court
detailed the facts supporting each of those findings. The court also assessed
each of the potential mitigating factors and explained why it found no mitigating
factors.
The trial court then reviewed defendant's convictions related to the three
criminal episodes that occurred on February 28, 2011, March 3, 2011, and March
29, 2011. The court detailed these incidents, explaining that the February 28,
2011 incident involved a home invasion; the kidnapping of three victims, two of
whom were teenage girls; and a robbery. The court found that the victims were
independently traumatized and that it was, therefore, appropriate to run the
sentences for the convictions of two of the three kidnappings and the robbery
consecutively. Evaluating the convictions related to the crimes from the March
3, 2011 and the March 29, 2011 incidents and applying the Yarbough factors to
them, the court found that those incidents were separate and independent and
consequently the sentences from those episodes should run consecutively.
The trial court then conducted a separate and detailed Yarbough analysis
of the sentences related to each of the convictions within the three incidents.
The trial court reassessed the four specific sentences identified by the Supreme
Court and, in three sentences, imposed a concurrent sentence and reduced the
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sentence on the fourth conviction. Accordingly, the sentences for the
convictions on counts three, eight, and forty-five, which had been consecutive
at the first sentence, were reconsidered and were run concurrent at the
resentencing. The sentence on count seven was reduced from eight years with
four years of parole ineligibility to six years with forty-two months of parole
ineligibility. In addition, the court changed the sentence on count five from
consecutive to concurrent.
The trial court also considered the overall fairness of the sentence . The
trial court found that given that defendant had been convicted of five first-degree
crimes arising out of three separate criminal episodes, the overall sentence was
seventy years with almost fifty-eight years of parole ineligibility. The trial court
reasoned that the lengthy sentence was consistent with Yarbough's charge that
there are no free crimes and the mandatory nature of parole ineligibility imposed
under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In remanding the matter for resentencing, the Supreme Court retained
jurisdiction. Cuff, 239 N.J. at 353. On December 8, 2020, the Court issued an
order relinquishing jurisdiction and providing that any challenge to the sentence
imposed on remand could be filed with this court. Defendant now appeals from
the judgment of conviction entered after his resentencing.
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II.
On this second appeal, defendant argues that his sentence is a de facto life
sentence. Procedurally, he challenges the resentences, contending that the trial
court failed to appropriately evaluate the various sentencing factors.
Substantively, he contends that the resentence is excessive. Defendant
articulates those arguments as follows:
THE 70-YEAR SENTENCE WITH 57.9 YEARS OF
PAROLE INELIGIBILITY, A DE FACTO LIFE
SENTENCE, IS EXCESSIVE.
A. Procedurally, The Trial Court Again Failed To
Weigh Sentencing Factors Appropriately.
1. The trial court overweighed
defendant's prior record and failed to
sufficiently take his rehabilitative efforts
into account when assessing aggravating
and mitigating factors.
2. The trial court gave insufficient
attention to the fact that these crimes
occurred in an aberrant spree in defendant's
life.
B. Substantively, The Trial Court's Revised
Sentence Remains Manifestly Excessive.
1. Courts have a responsibility to
ensure that aggregate sentences are not
excessive.
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2. This sentence is much longer than
necessary to incapacitate.
3. This sentence is much longer than
necessary to deter.
4. This sentence is much longer than
necessary to rehabilitate.
5. This sentence is much longer than
necessary to further the goal of retribution.
An appellate court's standard of review of a sentence is well-established
and deferential. Cuff, 239 N.J. at 347 (citing State v. Fuentes, 217 N.J. 57, 70
(2014)). We will affirm a trial court's sentence 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) (alteration in original)
(quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
In its opinion addressing defendant's first appeal, the Supreme Court
delineated what a sentencing court must do when imposing consecutive or
concurrent sentences for multiple convictions. Cuff, 239 N.J. at 347-348. The
Court reiterated that sentencing courts must look to N.J.S.A. 2C:44-5(a) and the
case law interpreting that statute. Ibid. The Court also explained that the factors
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set forth in Yarbough, 100 N.J. at 643-44, continued to be the guiding criteria.
Cuff, 239 N.J. at 347-48.
In addition, the Court reiterated that sentencing courts should focus on
"the fairness of the overall sentence." Id. at 352 (quoting State v. Miller, 108
N.J. 112, 121 (1987)). The Supreme Court recently emphasized this principle
and explained:
In sum, while the Code is animated by the overarching
goal of ensuring "a predictable degree of uniformity in
sentencing," uniformity and predictability should not
come at the expense of fairness and proportionality.
We reiterate the repeated instruction that a sentencing
court's decision whether to impose consecutive
sentences should retain focus on "the fairness of the
overall sentence." Toward that end, the sentencing
court's explanation of its evaluation of the fairness of
the overall sentence is "a necessary feature in any
Yarbough analysis."
[State v. Torres, 246 N.J. 246, 270 (2021) (internal
citations omitted).]
In resentencing defendant, the trial court followed all instructions from
the Supreme Court. The trial court engaged in a completely new and holistic
analysis in resentencing defendant. It detailed defendant's multiple convictions
and the three episodes in which defendant's crimes were committed. The court
then undertook a Yarbough analysis going through and explaining all the
Yarbough factors. The court also undertook a new and comprehensive analysis
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of the mitigating and aggravating factors. It detailed the facts supporting its
findings of aggravating factors three, six, and nine and the lack of evidence
supporting any mitigating factor. The substantial credible evidence in the record
supports the trial court's determination concerning the aggravating factors and
the lack of any mitigating factor.
The court also undertook a detailed evaluation of the fairness of the
overall sentence. The court re-evaluated the three criminal episodes and the
various crimes committed during each episode. The court then explained why
it was imposing certain sentences consecutively. In particular, the court focused
on why consecutive sentences were warranted for two of the three kidnapping
convictions arising out of the incident of February 28, 2011. Responding to the
arguments made by defense counsel, the trial court pointed out the trauma
endured by the family whose home had been invaded and during which two
teenage girls were tied up. Their parents arrived home later; were confronted
by defendant, who had a gun; and were also tied up. The court detailed the
trauma that those kidnappings inflicted on the family, pointing out that the
family had thereafter left the country and the mother could not even appear at
the trial.
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At the resentencing, the trial court also explained that the multiple crimes
committed by defendant in the three different criminal episodes resulted in a
lengthy sentence. The trial court's analysis reflects that the court was not
mechanically imposing the sentences. Instead, it was doing just what the
Supreme Court directed: it was balancing the Yarbough factor directing that
"there can be no free crimes," Yarbough, 100 N.J. at 643, with the need for
fairness and proportionality. Cuff, 239 N.J. at 352.
On this appeal, defendant argues that the resentence is a de facto life
sentence. We reject that contention. The sentence is the result of a careful
evaluation of the sentencing principles set forth in the Criminal Code and case
law. Although a seventy-year sentence with almost fifty-eight years of parole
ineligibility is lengthy, it is a sentence that accounts for defendant's seventeen
convictions, five of which were for first-degree crimes and seven of which were
for second-degree crimes.
Defendant also attacks his resentence as procedurally defective, arguing
that the trial court again failed to weigh sentencing factors appropriately. He
contends that the trial court gave too much weight to his prior record and failed
to sufficiently consider his rehabilitative efforts since his first sen tencing. The
record at the resentencing rebuts those arguments. Contrary to defendant's
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contention, the trial court expressly acknowledged defendant's efforts since he
had been originally sentenced. Consequently, even though the resentencing took
place before the Court issued its decision in State v. Rivera, 249 N.J. 285 (2021),
the trial court complied with Rivera's directive that a defendant's youth may be
considered as a mitigating factor in sentencing. The court also appropriately
considered defendant's criminal record. We discern no abuse of discretion in
the court's balancing of those considerations.
We also reject defendant's argument that at the resentencing the trial court
failed to sufficiently consider that defendant committed the crimes during
several months when he was twenty-four years old. When defendant was
resentenced on January 24, 2020, there were thirteen mitigating factors, and the
court considered each one. Mitigating factor fourteen, which allows a court to
address the impact of youth for a defendant who commits the offense under the
age of twenty-six, was made effective by the Legislature on October 19, 2020,
and applies to sentencing proceedings held on or after that date. See N.J.S.A.
2C:44-1(b)(14); L. 2020, c. 110; see also Rivera, 249 N.J. at 303-04
(acknowledging mitigating factor was given "immediate effect in all sentencing
proceedings on or after October 19, 2020").
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Accordingly, mitigating factor fourteen was not applicable at defendant's
resentencing. See State v. Bellamy, 468 N.J. Super. 29, 47-48 (App. Div. 2021)
(holding that when there is an independent basis to order a new sentencing
hearing, mitigating factor fourteen should be applied at the resentencing if it
takes place after October 19, 2020). Nevertheless, the trial court acknowledged
and evaluated defendant's age, both at the time that the offenses were committed
and when he was being resentenced. Defendant was not a juvenile when he
committed his multiple crimes, and his sentence did not trigger the special
considerations afforded to juveniles. See State v. Comer 249 N.J. 359, 384-85
(2022).
Finally, we reject defendant's argument that his resentence resulted in a
manifestly excessive sentence. As we have detailed, defendant's sentence is the
result of his conviction for seventeen offenses arising out of three separate
criminal episodes. The seventy-year sentence is also the result of the trial court's
careful evaluation of the factors for determining which sentences should be
consecutive and which should be concurrent. Indeed, the trial court
reconsidered and imposed concurrent sentences on three of the four specific
sentences identified by the Supreme Court in defendant's first appeal. As the
trial court pointed out, defendant's lengthy sentence, and particularly the period
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of parole ineligibility, is the result of his multiple first-degree crimes that require
mandatory periods of parole ineligibility as prescribed by NERA.
Affirmed.
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