State v. Keith v. Cuff (080753) (Camden County and Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Keith V. Cuff (A-79-17) (080753)
Argued February 25, 2019 -- Decided August 6, 2019
PATTERSON, J., writing for the Court.
The Court granted certification limited to two of the issues defendant Keith V.
Cuff raised on appeal from his nineteen -- later reduced to eighteen -- convictions: (1)
defendant’s challenge to his conviction of three counts of first-degree kidnapping on the
basis that, although the trial court instructed the jury on the elements of second-degree
kidnapping as a lesser-included offense of first-degree kidnapping, the verdict sheet
included no question addressing that offense; and (2) defendant’s challenge to the trial
court’s imposition of consecutive sentences, which resulted in an aggregate ninety-eight-
year sentence, with more than sixty-six years of parole ineligibility.
Defendant’s convictions and sentence relate to six incidents: (1) the June 24, 2010
armed robbery of a Cherry Hill resident in his home, where the victim was left with his
hands tied behind his back and his ankles tied together; (2) the February 28, 2011 armed
robbery of a Cherry Hill residence after which the parents -- who returned home during
the robbery -- and their thirteen- and fourteen-year-old daughters -- who had been tied up
for roughly an hour before their parents returned -- were left with their hands tied behind
their backs; (3) the March 3, 2011 armed robbery of a Winslow Township man in front of
his home; (4) the March 29, 2011 flight from and apprehension by police officers of a
man who fled a stolen car; (5) the April 3, 2011 robbery of a family in Gloucester
Township, after which a man and his fiancée, daughter, and son were left with their hands
tied; and (6) the May 14, 2011 robbery of a man and woman in their home in Sicklerville.
Defendant was charged with fifty-five offenses, including eleven counts of first-
degree kidnapping relating to four of the incidents. He was tried before a jury over
twelve days. At the close of evidence, the trial court conferred with counsel and prepared
a jury charge. The court read the charge to the jury and sent the written instructions into
the jury room for use during deliberations.
The jury charge addressed the jury’s obligation to consider not only charges set
forth in the indictment, but also lesser-included offenses as instructed by the court. In the
charge, the trial court addressed the eleven charges of first-degree kidnapping pending
against defendant. The court set forth the elements of the first-degree offense, including
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the element that defendant did not “release[] [the victim] unharmed and in a safe place
prior to apprehension.” Tracking the pertinent Model Jury Charges, the trial court also
instructed the jury about three lesser-included offenses: second-degree kidnapping, third-
degree criminal restraint, and the disorderly persons offense of false imprisonment. The
verdict sheet provided spaces for the jury to record its verdict as to first-degree
kidnapping, third-degree criminal restraint, and the disorderly persons offense of false
imprisonment, as well as the other charges pending against defendant. It did not,
however, include a space for the jury to determine whether defendant was guilty or not
guilty of second-degree kidnapping. Defendant did not object to the verdict sheet.
During deliberations, the jury asked the trial court, “[i]f applicable, how do we
denote second-degree on a charge in the verdict book?” After conferring with counsel,
the court instructed, “[y]ou answer the questions as they are posed on the verdict
sheet. . . . Each individual question as posed.” The jury convicted defendant of nineteen
charges -- sixteen of the counts charged in the indictment and three lesser-included
offenses. The jury convicted defendant of three counts of first-degree kidnapping as to
the father and the two daughters from the February 28, 2011 incident in Cherry Hill. The
jury acquitted defendant of the other kidnapping charges.
The trial court sentenced defendant. Invoking State v. Yarbough, 100 N.J. 627,
643-44 (1985), the court determined both that certain sentences relating to different
criminal episodes should run consecutively and that certain sentences arising from crimes
committed in the same criminal episodes should run consecutively. The Appellate
Division affirmed the trial court’s determinations on the two issues relevant to this
appeal: the omission of a reference to second-degree kidnapping on the verdict sheet;
and the imposition of consecutive sentences. The Court granted certification limited to
those issues. 234 N.J. 315 (2018).
HELD: The omission of second-degree kidnapping from the verdict sheet does not
constitute plain error. The jury instruction accurately described the State’s burden of
proof with respect to the elements of both first-degree and second-degree kidnapping, and
directed the jury to consider second-degree kidnapping as a lesser-included offense if it
did not find defendant guilty of the first-degree offense. Moreover, the evidence
presented at trial did not provide a rational basis for a second-degree kidnapping
conviction because the victims were not “release[d] . . . unharmed and in a safe place,” an
element of the second-degree offense. N.J.S.A. 2C:13-1(c). Defendant was properly
convicted of three counts of first-degree kidnapping. As to the sentence, the Court agrees
with the Appellate Division that the terms imposed for most of defendant’s offenses
constituted a proper exercise of the trial court’s discretion but concludes that the trial
court should resentence defendant so that it may consider whether certain offenses
committed within the same criminal episode warrant concurrent rather than consecutive
sentences, as well as whether the decision to make the sentences consecutive rather than
concurrent made the aggregate sentence imposed on defendant an abuse of discretion.
2
1. In a prosecution for first-degree kidnapping, the State must prove beyond a reasonable
doubt that the victim was harmed or not released in a safe place prior to apprehension.
See N.J.S.A. 2C:13-1(b)-(c). Here, the trial court properly explained that if the jury has
“reasonable doubt as to whether the [S]tate has proven beyond a reasonable doubt that
[defendant] knowingly harmed or knowingly did not release any of the alleged victims in
a safe place prior to his apprehension, you should then find the defendant guilty of
kidnap[p]ing in the second degree.” The issue raised by defendant on appeal arose from
an omission in the verdict sheet, which listed the elements of first-degree kidnapping and
then provided spaces for the jury to record a verdict of either “guilty” or “not guilty.” As
to each victim, the verdict sheet instructed the jury to proceed to a question addressing
the lesser-included offense of third-degree criminal restraint if it found defendant not
guilty of first-degree kidnapping. The verdict sheet should have included, as to each
victim, a similar inquiry about second-degree kidnapping. Defendant did not object to
the omission of those questions, which the Court thus reviews for plain error. (pp. 16-20)
2. Where the oral instructions of a court were sufficient to convey an understanding of
the elements to the jury, and where the verdict sheet was not misleading, any error in the
verdict sheet can be regarded as harmless. In State v. Galicia, the Court reviewed a
verdict sheet that incorrectly “suggested that the jury would only reach the issue of
passion/provocation if it found the defendant guilty of murder.” 210 N.J. 364, 375
(2012). The Court found the error harmless because there was no rational basis for the
trial court to charge the jury as to the elements of passion/provocation. Id. at 385, 389.
As in Galicia, there is no basis in this case for a finding of plain error. The jury had the
trial court’s precise and accurate explanation of the first-degree and second-degree
kidnapping standards -- not only as verbally delivered in court, but in written form in the
jury room. The jury clearly understood it could acquit defendant of first-degree offenses
and consider lesser-included offenses; indeed, with respect to eight other first-degree
kidnapping counts, it either convicted defendant of lesser-included offenses or acquitted
him entirely. The evidence in this case did not provide a rational basis to convict
defendant of second-degree kidnapping. Here, it is undisputed that the three victims were
left in their home with their hands tied behind their backs. Defendant “released” none of
them within the meaning of N.J.S.A. 2C:13-1(c). The Court rejects the argument that the
jury’s question, which could have pertained to many of the charges pending against
defendant, indicates that the jury would have convicted him of second-degree kidnapping
had the verdict sheet provided a place to record such a verdict. (pp. 20-29)
3. In Yarbough, the Court provided guidance for determining whether multiple sentences
should run concurrently or consecutively, and directed sentencing courts to consider a
collection of qualitative factors, including “facts relating to the crimes,” like whether
“(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
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the crimes involved multiple victims; [and] (e) the convictions for which the sentences
are to be imposed are numerous.” Id. at 643-44. A sentencing court must explain its
decision to impose concurrent or consecutive sentences in a given case. When a court
fails to give proper reasons for imposing consecutive sentences at a single sentencing
proceeding, ordinarily a remand should be required for resentencing. (pp. 30-33)
4. Defendant was sentenced for nineteen offenses committed in three separate criminal
episodes. The trial court properly applied the Yarbough factors when it sentenced
defendant to terms of incarceration running consecutively to the terms imposed for
crimes committed in different criminal episodes. The court’s analysis upon imposing a
consecutive sentence for the first-degree kidnapping of the fourteen-year-old victim
during the February 28, 2011 incident also satisfied Yarbough because she and her sister
were kidnapped approximately one hour before the first-degree kidnapping of her father
and the third-degree criminal restraint of her mother. (pp. 33-35)
5. 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 Yarbough,
warranting a remand for resentencing with respect to those offenses. The Court instructs
that those determinations be reconsidered on remand and that a more detailed explanation
of the court’s reasoning be provided. In resentencing defendant on remand, the trial court
should consider the fairness of the aggregate sentence imposed for the eighteen offenses
as to which defendant’s convictions have been affirmed -- a necessary feature in any
Yarbough analysis. (pp. 35-38)
The judgment of the Appellate Division is affirmed in part and reversed in
part. The Court vacates defendant’s sentence, remands for resentencing, and
retains jurisdiction to review the sentence imposed on remand.
JUSTICE ALBIN, dissenting in part, stresses that none of the parties suggested
at trial, before the Appellate Division, or in the briefing before this Court that there was
not a rational basis for charging second-degree kidnapping. In Justice Albin’s view, the
trial court properly charged on second-degree kidnapping and, because, the verdict sheet
did not allow the jury to return a verdict on that count, that omission constituted plain
error -- an error clearly capable of producing an unjust result. See R. 2:10-2. Defendant
had a right to fair consideration of all lesser-included offenses rationally based in the
record, Justice Albin explains, and the defective jury verdict form deprived him of that
right. Defendant therefore should receive a new trial, in Justice Albin’s view. Justice
Albin concurs with the sentencing portion of the majority’s opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, FERNANDEZ-VINA,
and TIMPONE join in JUSTICE PATTERSON’S opinion. JUSTICE ALBIN filed
an opinion, dissenting in part. JUSTICE SOLOMON did not participate.
4
SUPREME COURT OF NEW JERSEY
A-79 September Term 2017
080753
State of New Jersey,
Plaintiff-Respondent,
v.
Keith V. Cuff,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division.
Argued Decided
February 25, 2019 August 6, 2019
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).
Maura Murphy Sullivan, Assistant Prosecutor, argued the
cause for respondent (Mary Eva Colalillo, Camden
County Prosecutor, attorney; Nancy P. Scharff, Assistant
Prosecutor, of counsel and on the briefs).
Evgeniya Sitnikova, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Evgeniya
Sitnikova, of counsel and on the brief).
1
JUSTICE PATTERSON delivered the opinion of the Court.
The State indicted defendant Keith V. Cuff for fifty-five offenses arising
from five residential robberies and an additional incident in which defendant
stole a vehicle while attempting to escape from a traffic stop. A jury convicted
defendant of nineteen of those offenses, including three counts of first-degree
kidnapping while in possession of a firearm contrary to N.J.S.A. 2C:13-
1(b)(1). The trial court sentenced defendant to an aggregate ninety-eight-year
sentence, with more than sixty-six years of parole ineligibility. The Appellate
Division affirmed defendant’s conviction and sentence with respect to all but
one of the offenses, and reduced his sentence to an aggregate ninety-year
sentence, with more than sixty-four years’ parole ineligibility. We granted
defendant’s petition for certification, limited to two of the issues that he raised
on appeal.
First, we review defendant’s challenge to his conviction of three counts
of first-degree kidnapping. Pursuant to N.J.S.A. 2C:13-1, when the State
proves the elements of first-degree kidnapping, but fails to demonstrate that a
defendant did not “release[] the victim unharmed and in a safe place prior to
[the defendant’s] apprehension,” the defendant is guilty of kidnapping in the
second degree. N.J.S.A. 2C:13-1(c). Although the trial court instructed the
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jury on the elements of second-degree kidnapping as a lesser-included offense
of first-degree kidnapping, the verdict sheet included no question addressing
that offense. Defendant did not object to that omission at trial. He contends
on appeal, however, that his convictions on the first-degree kidnapping charges
should be reversed by virtue of the error in the verdict sheet.
We hold that the omission of second-degree kidnapping from the verdict
sheet does not constitute plain error. The jury instruction, which the trial court
read to the jury and provided in written form to be used during deliberations,
accurately described the State’s burden of proof with respect to the elements of
both first-degree and second-degree kidnapping, and directed the jury to
consider second-degree kidnapping as a lesser-included offense if it did not
find defendant guilty of the first-degree offense. The jury found that the State
proved beyond a reasonable doubt all elements of the offense of first-degree
kidnapping.
Moreover, the evidence presented at trial did not provide a rational basis
for a second-degree kidnapping conviction. That evidence established that
defendant left the victims in question -- a father and his two young daughters
-- in their home with their hands tied behind their backs. Those victims were
not “release[d] . . . unharmed and in a safe place,” an element of the second-
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degree offense. N.J.S.A. 2C:13-1(c). We therefore hold that defendant was
properly convicted of three counts of first-degree kidnapping.
Second, we review defendant’s challenge to the trial court’s imposition
of consecutive sentences. Defendant contends that the court misapplied the
factors prescribed in State v. Yarbough, 100 N.J. 627, 643-44 (1985), when it
imposed those sentences. We agree with the Appellate Division that the terms
of incarceration imposed for most of defendant’s offenses constituted a proper
exercise of the trial court’s discretion. We conclude, however, that the trial
court should resentence defendant so that it may consider whether certain
offenses committed within the same criminal episode warrant concurrent rather
than consecutive sentences, as well as whether the decision to make the
sentences consecutive rather than concurrent made the aggregate sentence
imposed on defendant an abuse of discretion. We therefore vacate defendant’s
sentence and remand for resentencing.
Accordingly, we affirm in part and reverse in part the Appellate
Division’s judgment, and retain jurisdiction to review the sentence imposed on
remand.
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I.
A.
We derive our summary of the six incidents that gave rise to this matter
from the record of defendant’s trial.
On June 24, 2010, a Cherry Hill resident was robbed in his home by
three men, one of whom carried a weapon. According to the victim, the men
stole cash, traveler’s checks, and a watch. The victim was left in the home
with his hands tied behind his back and his ankles tied together.
On February 28, 2011, two armed men entered a family’s Cherry Hill
residence when only the children were at home. Two of the children were
asleep, but the men encountered a fourteen-year-old girl and a thirteen-year-
old girl. They tied the girls’ hands behind their backs, and detained them in an
upstairs room. When the parents came home about an hour later, the men
accosted the father at gunpoint, took about two thousand dollars in cash from
him, and demanded access to his safe. The men tied the mother’s hands
behind her back, forced the husband to turn the alarm system off, brought him
to the basement, and tied his hands behind his back. After the men left, the
father was able to unbind his hands. He went upstairs, untied his wife’s hands,
located his daughters, and freed them.
5
On March 3, 2011, a resident of Winslow Township arrived at his home
and was confronted by two men, one of whom pointed a gun at the back of his
neck. The men stole approximately two thousand dollars in cash from the man
and took his car, which was recovered later that night.
On March 29, 2011, a Gloucester Township police officer noticed a car
matching the description of a vehicle reported to have been involved in an
incident unrelated to the crimes involved in this matter. The officer turned his
patrol vehicle around to follow the car, which pulled onto the shoulder of the
road. The officer saw a man exit the car via the passenger door and run away.
The officer approached and questioned the driver, who claimed not to know
the name of the person who had fled his car. The officer called for backup ,
and responding officers were able to apprehend the fleeing suspect. As
officers tracked the suspect, they found two handguns. They later discovered
that the vehicle from which the man had fled had been stolen six months
earlier.
Another robbery took place on April 3, 2011 in Gloucester Township.
Arriving at his home, a man was confronted by two men wearing masks who
demanded he open his safe, from which the men took money. The two men
then tied the hands of the man, his fiancée, his daughter, and his son,
transported the two adults into the bathroom, and placed them into the bathtub.
6
After warning the victims not to move for five minutes, the two men left the
home.
On May 14, 2011, a man and a woman arrived at their home in
Sicklerville and were confronted by three men, one of whom pointed a gun at
them. Two of the men forced the man to open his safe and took about two
thousand dollars, a watch, a computer, and silver. The three men then left the
home.
B.
Defendant was charged with fifty-five offenses. He and his
codefendants, Tamir Logan and Dante Goree, were charged with first-degree
kidnapping, first-degree robbery, and other offenses in connection with the
June 24, 2010 incident in Cherry Hill. Defendant alone was charged with four
counts of first-degree kidnapping, two counts of first-degree robbery, and other
offenses in connection with the February 28, 2011 incident in Cherry Hill. He
and codefendant Abdul Mansaray were charged with first-degree robbery and
other offenses in connection with the March 3, 2011 incident in Winslow
Township. Defendant was charged with second-degree unlawful possession of
a weapon and third-degree theft of an automobile in connection with the March
29, 2011 incident in Gloucester Township. He and codefendant Mansaray
were charged with four counts of first-degree kidnapping and other offenses in
7
connection with the April 3, 2011 incident in Gloucester Township. Defendant
alone was charged with first-degree robbery in connection with the April 3,
2011 incident in Gloucester Township. Finally, defendant and codefendants
Logan and Goree were charged with two counts of first-degree kidnapping,
two counts of first-degree robbery, and other offenses in connection with the
May 14, 2011 incident in Sicklerville. 1
Defendant moved to sever the charges so that the charges relevant to
each incident would be adjudicated in separate trials. The trial court denied
the motion.
Defendant and Logan were tried before a jury over twelve days. The
State presented the testimony of ten of the victims, two cooperating witnesses,
investigating officers from several police departments, and other law
enforcement personnel.
At the close of the evidence, the trial court conferred with counsel and
prepared a jury charge. The court read the charge to the jury and sent the
written instructions into the jury room for use during deliberations.
1
Mansaray and Goree entered into plea agreements with the State and pled
guilty to certain charges against them prior to trial.
8
The jury charge addressed the jury’s obligation to consider not only
charges set forth in the indictment, but also lesser-included offenses as
instructed by the court.
In the charge, the trial court addressed the eleven charges of first-degree
kidnapping pending against defendant and the three first-degree kidnapping
charges pending against Logan.
The court set forth the elements of the first-degree offense, including the
element that defendant did not “release[] [the victim] unharmed and in a safe
place prior to apprehension.” Tracking the pertinent Model Jury Charges, the
trial court also instructed the jury about three lesser-included offenses:
second-degree kidnapping, N.J.S.A. 2C:13-1(c)(1); third-degree criminal
restraint, N.J.S.A. 2C:13-2; and the disorderly persons offense of false
imprisonment, N.J.S.A. 2C:13-3.
The verdict sheet provided spaces for the jury to record its verdict as to
first-degree kidnapping, third-degree criminal restraint, and the disorderly
persons offense of false imprisonment, as well as the other charges pending
against defendant. It did not, however, include a space for the jury to
determine whether defendant was guilty or not guilty of second-degree
kidnapping. Defendant did not object to the verdict sheet.
9
During deliberations, the jury asked the trial court, “[i]f applicable, how
do we denote second-degree on a charge in the verdict book?” After
conferring with counsel, the court instructed, “[y]ou answer the questions as
they are posed on the verdict sheet. . . . Each individual question as posed.
You, the jury, are not to be concerned about the degree of the crime. That is in
the Court’s domain.”
The jury convicted defendant of nineteen charges -- sixteen of the counts
charged in the indictment and three lesser-included offenses.
With respect to the February 28, 2011 incident in Cherry Hill, the jury
convicted defendant of nine charged counts and one lesser-included offense:
three counts of first-degree kidnapping, in which the victims were the father
and the daughters; one count of false imprisonment as a lesser-included
offense of first-degree kidnapping, in which the victim was the mother; one
count of first-degree robbery, N.J.S.A. 2C:15-1; one count of second-degree
burglary, N.J.S.A. 2C:18-2; one count of fourth-degree aggravated assault with
a firearm, N.J.S.A. 2C:12-1(b)(4); one count of second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4; one count of second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and one count
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). The jury acquitted
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defendant of another count of first-degree robbery and a lesser-included
offense to that charge, and did not reach a verdict as to six other charges
arising from that incident.
With respect to the March 3, 2011 incident in Winslow Township, the
jury convicted defendant of five charged counts and one lesser-included
offense: one count of first-degree robbery; one count of second-degree
conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; one
count of second-degree possession of a weapon for an unlawful purpose; one
count of second-degree unlawful possession of a weapon; one count of fourth-
degree aggravated assault with a firearm; and one count of fourth-degree
unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(b), as a lesser-
included offense of third-degree theft of an automobile, N.J.S.A. 2C:20-10(c).
With respect to the March 29, 2011 incident involving the stolen car, the
jury convicted defendant of one charged count and one lesser-included
offense: one count of second-degree unlawful possession of a weapon; and
one count of unlawful taking of a means of conveyance as a lesser-included
offense of third-degree theft of an automobile.
Finally, the jury convicted defendant of second-degree conspiracy to
commit “robbery and/or kidnapping” in connection with the April 3, 2011
incident in Gloucester Township. It acquitted defendant of all other charges,
11
including four counts of first-degree kidnapping, in connection with that
incident.
The jury acquitted defendant of all charges in connection with the June
24, 2010 incident in Cherry Hill, including one count of first-degree
kidnapping, and acquitted him of all charges in connection with the May 14,
2011 incident in Sicklerville.
C.
The trial court sentenced defendant. It found and weighed heavily
aggravating factors three, “[t]he risk that the defendant will commit another
offense;” six, “[t]he extent of the defendant’s prior criminal record and the
seriousness of the offenses of which he has been convicted;” and nine, “[t]he
need for deterring the defendant and others from violating the law.” N.J.S.A.
2C:44-1(a)(3), (6), (9). It found no mitigating factors and concluded that the
aggravating factors substantially outweighed the mitigating factors.
Invoking Yarbough, 100 N.J. at 643-44, the court determined both that
certain sentences relating to different criminal episodes should run
consecutively and that certain sentences arising from crimes committed in the
same criminal episodes should run consecutively.
The court imposed an aggregate term of ninety-eight years’ incarceration
with more than sixty-six years’ parole ineligibility.
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D.
Defendant appealed his convictions and sentence. The Appellate
Division affirmed in part and reversed in part the trial court’s judgment and
remanded the matter for further proceedings.
The Appellate Division affirmed the trial court’s determinations on the
two issues relevant to this appeal: the omission of a reference to second -
degree kidnapping on the verdict sheet; and the imposition of consecutive
sentences. It held that the error on the verdict sheet was harmless. It noted
that the jury charge, to which the jury had access during deliberations, was
proper, that there was no objection to the verdict sheet, and that a conviction of
second-degree kidnapping would have required the jury to find that the victims
were released unharmed in a safe place prior to defendant’s apprehension,
N.J.S.A. 2C:13-1(c), despite “compelling evidence that defendant had left the
victims tied up.”
With respect to the sentence, the Appellate Division concluded that the
trial court properly exercised its discretion in imposing consecutive terms of
incarceration for certain offenses.
The Appellate Division vacated defendant’s conviction of second-degree
conspiracy to commit “robbery and/or kidnapping,” finding that the trial
court’s instruction improperly combined two distinct conspiracy charges and
13
that the jury may not have unanimously convicted defendant for a single
offense. As a result of that ruling, defendant’s sentence was reduced to an
aggregate ninety years’ incarceration, with sixty-four years’ parole
ineligibility.
The Appellate Division rejected defendant’s remaining arguments.
E.
We granted defendant’s petition for certification, “limited to the issues
of the verdict sheet’s omission of the charge of second-degree kidnapping and
the trial court’s imposition of consecutive sentences.” 234 N.J. 315 (2018).
We also granted the application of the Attorney General to appear as amicus
curiae.
II.
A.
Defendant argues that although the jury instructions were proper, they
did not cure the omission of second-degree kidnapping from the verdict sheet.
Citing the question asked by the jury during deliberations, defendant asserts
that the jury intended to find him guilty of second-degree kidnapping as a
lesser-included offense of one or more of defendant’s first-degree kidnapping
charges. Defendant contends that the evidence supported second-degree
kidnapping charges regarding the February 28, 2011 incident in Cherry Hill
14
because the father untied himself and freed his daughters soon after defendant
left their home. Defendant also contends that his ninety-year aggregate
sentence constituted excessive punishment for crimes in which no victim was
killed or injured. He asserts that the trial court misapplied the Yarbough
factors in several respects, and that the court should not have imposed
consecutive sentences for multiple offenses stemming from a single criminal
episode.
The State argues that any error in the verdict sheet was not plain error
but harmless error because the trial court properly instructed the jury regarding
second-degree kidnapping and the State proved that defendant did not release
the victims unharmed in a safe place prior to defendant’s apprehension. It
contends that defendant’s reliance on the jury question about second-degree
charges is misplaced because the jury did not specify the charge to which it
referred. The State also asserts that the trial court adequately applied the
Yarbough factors and explained its rationale for imposing consecutive
sentences.
The Attorney General, as amicus curiae, contends that the lack of a
second-degree kidnapping charge on the verdict sheet prejudiced the State, not
defendant, because the omission may have encouraged the jury to consider the
lesser-included offenses of a lower degree, and that any error was harmless.
15
The Attorney General also argues that the trial court’s imposition of
consecutive sentences was proper because defendants’ crimes were primarily
independent of one another: they involved separate acts and threats of
violence against multiple victims, at different times, in different locations, and
with independent objectives.
III.
A.
We first consider defendant’s argument that the Court should vacate his
conviction of three counts of first-degree kidnapping because the verdict sheet
diverged from the jury charge and omitted a question regarding the lesser-
included offense of second-degree kidnapping.
Our Code of Criminal Justice provides that a defendant is guilty of
kidnapping:
b. [I]f he unlawfully confines another for a substantial
period, with any of the following purposes:
(1) To facilitate commission of any crime or
flight thereafter;
(2) To inflict bodily injury on or to terrorize the
victim or another;
(3) To interfere with the performance of any
governmental or political function; or
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(4) To permanently deprive a parent, guardian,
or other lawful custodian of custody of the
victim.
c. Grading of kidnapping.
(1) Except as provided in paragraph (2) of this
subsection, kidnapping is a crime of the first
degree. . . . If the actor releases the victim
unharmed and in a safe place prior to
apprehension, it is a crime of the second degree.
[N.J.S.A. 2C:13-1(b)-(c).]
In a prosecution for first-degree kidnapping, the State must “prove
beyond a reasonable doubt either that the victim was harmed or not released in
a safe place prior to apprehension.” State v. Federico, 103 N.J. 169, 174
(1986); State v. Sherman, 367 N.J. Super. 324, 330 (App. Div. 2004). The
distinction between the first- and second-degree crimes is intended to ensure
the safety of the victim. See Federico, 103 N.J. at 175 (noting concern of
Model Penal Code drafters to “maximize [a] kidnapper’s incentive to return
the victim alive by making first[-]degree penalties apply only if the victim is
not ‘released alive in a safe place’” (quoting 2 The New Jersey Penal Code:
Final Report, cmt. 7 on N.J.S.A. 2C:13-1 at 187 (Criminal Law Revision
Comm’n 1971)).2
2
The distinction between first- and second-degree kidnapping has a
significant impact on a defendant’s sentencing exposure. A defendant
convicted of first-degree kidnapping faces a term of fifteen to thirty years’
17
At defendant’s trial, the trial court accurately explained first-degree
kidnapping and the lesser-included offense of second-degree kidnapping to the
jury. The court charged the jury to first determine whether the State proved
beyond a reasonable doubt the other elements of first-degree kidnapping, and
if so, to decide “whether the [S]tate has also proven beyond a reasonable doubt
that [defendant] knowingly harmed or knowingly did not release any of the
alleged victims in a safe place prior to apprehension.” After discussing the
“harm” and “released in a safe place” provisions, the court explained the
distinction between first- and second-degree kidnapping:
If you find that the [S]tate has proven beyond a
reasonable doubt that the defendant is guilty of
kidnap[p]ing[,] but you have reasonable doubt as to
whether the [S]tate has proven beyond a reasonable
doubt that he knowingly harmed or knowingly did not
release any of the alleged victims in a safe place prior
to his apprehension, you should then find the defendant
guilty of kidnap[p]ing in the second degree. If you find
beyond a reasonable doubt that the defendant is guilty
of kidnap[p]ing and that he knowingly harmed or
knowingly did not release any of the alleged victims in
a safe place prior to his apprehension, you should then
find the defendant guilty of kidnap[p]ing in the first
degree.
incarceration, N.J.S.A. 2C:13-1(c)(1), and a defendant convicted of second-
degree kidnapping faces a term of five to ten years’ incarceration, N.J.S.A.
2C:43-6(a)(2).
18
As the parties agree, the trial court’s jury instructions properly explained to the
jury the elements of both first- and second-degree kidnapping.
The issue raised by defendant on appeal arose from an omission in the
verdict sheet. The verdict sheet presented to the jury the question whether the
State had met its burden to prove first-degree kidnapping in violation of
N.J.S.A. 2C:13-1(b) and (c). As to each victim, the verdict sheet provided:
On or about the 28th day of February, 2011, in the
Township of Cherry Hill, in the County of Camden,
State of New Jersey, the defendant, KEITH CUFF, did:
1. unlawfully confine [the victim] for a substantial
period;
2. with the purpose to inflict bodily injury on and/or
terrorize [the victim] and/or to facilitate the
commission of any crime or flight thereafter;
AND
3. did not release [the victim] unharmed and in a safe
place prior to apprehension.
The verdict sheet then provided spaces for the jury to record a verdict of
either “guilty” or “not guilty.” As to each victim, the verdict sheet instructed
the jury to proceed to a question addressing the lesser-included offense of
third-degree criminal restraint if it found defendant not guilty of first-degree
kidnapping, and to proceed to a question addressing the use of a firearm in the
kidnapping if it found defendant guilty of the first-degree kidnapping charge.
19
In order to conform to the jury charge, the verdict sheet should have
included, as to each victim, an inquiry about second-degree kidnapping as a
lesser-included offense of first-degree kidnapping, mirroring questions
regarding the two other lesser-included offenses to first-degree kidnapping:
third-degree criminal restraint; and the disorderly persons offense of false
imprisonment. Defendant did not object to the omission of those questions.
See R. 3:19-1(b) (providing for objections to verdict sheets).
B.
1.
When the party alleging error failed to object at trial to the verdict sheet,
this Court reviews the verdict sheet for plain error. State v. Galicia, 210 N.J.
364, 386 (2012). That standard requires that we determine whether the error
asserted “is of such a nature as to have been clearly capable of producing an
unjust result.” R. 2:10-2.
We recognize the importance of the verdict sheet as “an essential
component” of the trial court’s “road map” for the jury’s deliberations.
Galicia, 210 N.J. at 387; see also State v. Diaz, 144 N.J. 628, 644 (1996)
(“When multiple offenses are submitted to a jury, special verdicts are often
helpful to an orderly deliberative process.”). We appreciate that “[j]urors are
likely to refer, and refer often, to the directions on the verdict form.” State v.
20
Nelson, 173 N.J. 417, 449 (2002). Thus, “we encourage completeness and
consistency in the preparation of verdict sheets.” State v. Gandhi, 201 N.J.
161, 198 (2010).
The trial court’s instructions to the jury, however, serve as the jury’s
primary guide as it considers the charges and the evidence. Id. at 196 (“A
verdict sheet is intended for recordation of the jury’s verdict and is not
designed to supplement oral jury instructions”). Thus, “[w]here we conclude
that the oral instructions of a court were sufficient to convey an understanding
of the elements to the jury, and where we also find that the verdict sheet was
not misleading, any error in the verdict sheet can be regarded as har mless.” Id.
at 197.
In Galicia, we reviewed for plain error a verdict sheet addressing the
passion/provocation manslaughter statute, which reduces a defendant’s offense
from murder to manslaughter when “a homicide which would otherwise be
murder under [N.J.S.A.] 2C:11-3, other than felony murder, is ‘committed in
the heat of passion resulting from a reasonable provocation.’” 210 N.J. at 378-
79 (quoting N.J.S.A. 2C:11-4(b)(2)). There, the verdict sheet submitted to the
jury at trial incorrectly “suggested that the jury would only reach the issue of
passion/provocation if it found the defendant guilty of murder.” Id. at 375.
21
Rejecting the Appellate Division’s conclusion that the mistaken instructions on
the verdict sheet did not constitute error, we held that
the verdict sheet error in this case was not a simple
omission easily rectified by the jury charge. The jury
had no copy of the trial court’s instructions in the jury
room. It had only the verdict sheet as a written guide
to structure its deliberations, and that verdict sheet
directed it not to reach the issue of passion/provocation
unless it found the defendant guilty of murder. That
direction may have prevented the jury from considering
passion/provocation simultaneously with its
determination of defendant’s guilt or innocence on the
murder charge, as required by N.J.S.A. 2C:11-4(b)(2)
and State v. Coyle, 119 N.J. 194, 223-24 (1990).
[Id. at 387.]
We noted, however, the defendant’s position that when he committed the
crime, he was “not motivated by rage, rejection, jealousy or a prior physical
attack, but by nervousness, panic and confusion,” as well as his decision not to
argue passion/provocation manslaughter or to seek a jury charge on that issue.
Id. at 389. In light of the trial evidence, we concluded that there was no
rational basis for the trial court to charge the jury as to the elements of
passion/provocation, and that the evidence would not have supported a jury
finding on that issue. Id. at 385, 389. We therefore found the error in the
verdict sheet to be harmless. Id. at 389.
As in Galicia, there is no basis in this case for a finding of plain error.
As it deliberated, the jury had the trial court’s precise and accurate explanation
22
of the first-degree and second-degree kidnapping standards -- not only as
verbally delivered in court, but in written form in the jury room. Those
instructions clearly directed the jury not to consider the lesser-included
offenses of the charged count of first-degree kidnapping -- second-degree
kidnapping, criminal restraint, and false imprisonment -- unless it found
defendant not guilty of the first-degree offense. The jury clearly understood
that it could acquit defendant of first-degree offenses and consider lesser-
included offenses; indeed, with respect to eight other first-degree kidnapping
counts, it either convicted defendant of lesser-included offenses or acquitted
him entirely. As to the kidnapping charges involving the father and his two
daughters in the February 28, 2011 incident in Cherry Hill, however, the jury
decided that the State had met its burden to prove each element of the first-
degree offense.
Just as the evidence in Galicia did not provide a rational basis for
passion/provocation manslaughter, the evidence in this case likewise did not
provide a rational basis to convict defendant of second-degree kidnapping.
Such a verdict would require the jury to conclude that the State failed to meet
its burden to prove that defendant did not “release” the victims “unharmed and
in a safe place” prior to his apprehension.
23
The term “release” denotes “[t]he action of freeing or the fact of being
freed from restraint or confinement.” Black’s Law Dictionary 1408 (10th ed.
2014). Consistent with N.J.S.A. 2C:13-1(c)’s plain meaning, we
acknowledged that a defendant who forced a taxi driver to drive a substantial
distance at gunpoint, after which he departed the taxi, leaving the driver
uninjured, had released that victim “unharmed and in a safe place,” and was
properly charged with second-degree kidnapping rather than first-degree
kidnapping. State v. Jackson, 211 N.J. 394, 398, 414 n.3 (2012). Similarly,
the Appellate Division noted that second-degree kidnapping was the
appropriate charge for a defendant who had handcuffed and confined a victim
in an undisclosed location for approximately six hours but then removed her
handcuffs and permitted her to leave, such that she was “released unharmed
and in a safe place” within the meaning of N.J.S.A. 2C:13-1(c). State v.
Marchand, 227 N.J. Super. 92, 94-95 (App. Div. 1988).
This appeal presents a stark contrast to those cases. Here, it is
undisputed that the three victims were left in their home with their hands tied
behind their backs -- the father forced into the basement and his daughters in
an upstairs room. Defendant “released” none of them within the meaning of
N.J.S.A. 2C:13-1(c).
24
Defendant argues that the evidence provided a rational basis for a jury
verdict of guilty on the charge of second-degree kidnapping because the adult
male victim managed to free himself, and then free his daughters, after
defendant left their home. For the provision to apply, however, it must be “the
actor” in the kidnapping -- not a police officer, not a bystander, and not the
victim himself -- who releases the victim. N.J.S.A. 2C:13-1(c). In this case,
the adult victim’s fortuitous opportunity to free himself and his daughters after
defendant’s departure does not support a second-degree kidnapping verdict.
Notwithstanding the lack of a rational basis for a guilty verdict on
second-degree kidnapping, defendant asserts that the question posed by the
jury indicates that the jury would have convicted him of that charge had the
verdict sheet provided a place to record such a verdict. We disagree. Without
reference to the crime of kidnapping or any other specific offense, the jury
asked only how it would “denote second-degree on a charge in the verdict
book.” Its inquiry could have pertained to many of the charges pending
against defendant. We decline to speculate about the meaning of that question.
2.
Our concurring and dissenting colleague asserts two arguments in
support of the contention that the error in the verdict sheet warrants reversal of
defendant’s first-degree kidnapping convictions. First, our dissenting
25
colleague surmises that the jury’s generic question to the trial court -- “[i]f
applicable, how do we denote second degree on a charge in the verdict book?”
-- related to the two first-degree charges for which the jury convicted
defendant, not to the other sixteen first-degree charges that the jury
considered. Post at ___ (slip op. at 3). Second, our dissenting colleague
argues that, in our harmless error analysis, we have considered an argument
that was not properly raised by the State and have displaced the jury in the role
of factfinder. Post at ___ (slip op. at 6). Neither contention has merit.
When it asked the trial court about how to “denote” a second-degree
charge, the jury had before it a verdict sheet requiring it to answer 115
questions, 62 of which related to the nineteen first-degree charges pending
against defendant. The verdict sheet properly focused on the elements of each
offense, and did not use the terms “first-degree” or “second-degree” to
categorize the various charges. 3 The jury’s question could have related to any
of the first-degree charges -- the five on which defendant was convicted, the
3
The dissent’s contention that the jury’s question could not have related to the
robbery charges pending against defendant because the verdict sheet addressed
the elements of second-degree robbery, post at ___ (slip op. at 2-3), is
unpersuasive. As with respect to the kidnapping charges, the verdict sheet
pages that addressed robbery charges did not specify whether those charges
were first- or second-degree charges. Thus, there is no way to exclude the
possibility that the jury was inquiring, in whole or in part, about the robbery
charges when it asked its question about second-degree offenses.
26
twelve on which defendant was acquitted, or the one on which defendant was
convicted of a lesser-included offense -- or to any of the twenty-three second-
degree charges. Alternatively, the jury’s question could have pertained to no
charge in particular. There is simply no basis for any speculation -- let alone
our dissenting colleague’s certainty -- as to the import of the jury’s question.
We also respectfully disagree with our dissenting colleague’s suggestion
that, in our harmless error analysis, we have improperly considered a question
that was not before the Court. The dissent contends that we granted
certification to consider whether “the verdict sheet and the trial court’s
erroneous response to the jury’s question precluded the jury from convicting
defendant of second-degree kidnapping.” Post at ___ (slip op. at 5). That
quotation is not from the Court’s grant of certification, but from defendant’s
brief to the Appellate Division. As framed by the Court, the grant of
certification generally related to “the verdict sheet’s omission of the charge of
second-degree kidnapping” and the imposition of consecutive sentences. 234
N.J. 315. There is no support for the dissent’s contention that our grant of
certification was a “shorthand” for the defendant’s argument. Post at ___ (slip
op. at 5).
More importantly, even the question that the dissent frames incorporates
the issue whether any error regarding the verdict sheet was harmless; a
27
contention raised by the State before the Appellate Division and this Court.
See R. 2:10-2. The State had no obligation to file a cross-petition to argue
harmless error before this Court, as the dissent contends that it did. Post at
___ (slip op. at 5). Moreover, in its brief before the Appellate Division, and
again in the brief that it submitted to this Court, the State pointed out that the
victims in the February 28, 2011 incident in Cherry Hill were not “release[d] .
. . unharmed” within the meaning of N.J.S.A. 2C:13-1(c) when defendant left
their home. Our dissenting colleague’s claim that the State waived its
argument -- a claim that not even defendant made in this case -- is unsupported
by the record.
Finally, our dissenting colleague contends that by considering whether
there was a rational basis to convict defendant of second-degree kidnapping
under N.J.S.A. 2C:13-1(c) as part of our harmless error analysis in this appeal,
we have somehow encroached upon the jury’s province as factfinder. Post at
___ (slip op. at 6). Appellate courts properly consider whether the evidence
presented at trial provides a rational basis for a conviction on a given charge,
either in the context of harmless error, see Galicia, 210 N.J. at 384-86; State v.
Coyle, 119 N.J. 194, 224 (1990), or in the setting of a dispute as to whether a
trial court should have instructed the jury, at the defendant’s request, as to a
lesser-included offense or other issues, see State v. Crisantos, 102 N.J. 265,
28
274-82 (1986); State v. Messino, 378 N.J. Super. 559, 581-82 (App. Div.
2005); State v. Bryant, 288 N.J. Super. 27, 36 (App. Div. 1996). Nothing in
that inquiry -- a legal determination -- constitutes an encroachment upon the
jury’s exclusive province as the factfinder. To the contrary, that analysis is
central to the question whether an error is “clearly capable of producing an
unjust result.” R. 2:10-2.
The record strongly supports the conclusion that the jury understood the
elements of first-degree kidnapping and concluded that the State met its
burden to prove those elements. The court’s instruction on second-degree
kidnapping only further underscored the distinction between the two offenses.
The evidence did not provide a rational basis for the jury to conclude that
defendant “release[d] . . . unharmed” the victims of the kidnapping on
February 28, 2011 in Cherry Hill, N.J.S.A. 2C:13-1(c), because those victims
were not released; they were left bound. To conclude otherwise ignores the
plain language of the statute. The error in the verdict sheet was harmless.
3.
Accordingly, we hold that the omission in the verdict sheet of questions
regarding second-degree kidnapping did not constitute plain error. We concur
with the Appellate Division’s judgment affirming defendant’s conviction of
three counts of first-degree kidnapping.
29
IV.
A.
We next consider defendant’s challenge to the consecutive terms of
incarceration imposed on him.
We review defendant’s sentence “in accordance with a deferential
standard,” State v. Fuentes, 217 N.J. 57, 70 (2014), and note that appellate
courts should not “substitute their judgment for those of our sentencing
courts,” State v. Case, 220 N.J. 49, 65 (2014). That deference “applies only if
the trial judge follows the Code and the basic precepts that channel sentencing
discretion,” however. Ibid. Here, the relevant principles are derived from the
statute that governs the imposition of multiple sentences and case law
interpreting and applying that statute.
N.J.S.A. 2C:44-5(a) provides that “[w]hen multiple sentences of
imprisonment are imposed on a defendant for more than one offense, including
an offense for which a previous suspended sentence or sentence of probation
has been revoked, such multiple sentences shall run concurrently or
consecutively as the court determines at the time of sentence” subject to two
limitations, neither of which applies here. In Yarbough, we noted the lack of
“specific criteria stated in the Code” for determining whether multiple
sentences should run concurrently or consecutively, and we resolved to
30
“fashion standards for discretion that will best further the purposes of the
Code.” 100 N.J. at 636. We directed sentencing courts to consider:
(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
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; [and]
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense.
31
[Id. at 643-44.]4
The Yarbough factors are qualitative, not quantitative; applying them
involves more than merely counting the factors favoring each alternative
outcome. See State v. Molina, 168 N.J. 436, 442-43 (2001) (affirming
consecutive sentences although “the only factor that support[ed] consecutive
sentences [was] the presence of multiple victims”); State v. Carey, 168 N.J.
413, 427-28 (2001) (holding that “a sentencing court may impose consecutive
sentences even though a majority of the Yarbough factors support concurrent
sentences”).
A sentencing court must explain its decision to impose concurrent or
consecutive sentences in a given case; “[a] statement of reasons is a necessary
prerequisite for adequate appellate review of sentencing decisions.” State v.
Miller, 108 N.J. 112, 122 (1987). When a court “fails to give proper reasons
for imposing consecutive sentences at a single sentencing proceeding,
4
In Yarbough, the Court identified a sixth factor: “there should be an overall
outer limit on the cumulation of consecutive sentences for multiple offenses
not to exceed the sum of the longest terms (including an extended term, if
eligible) that could be imposed for the two most serious offenses.” Id. at 644.
That factor is no longer part of the Yarbough inquiry because the Legislature
amended N.J.S.A. 2C:44-5(a) to provide that “‘[t]here shall be no overall outer
limit on the cumulation of consecutive sentences,’ thereby eliminating
guideline number six.” State v. Carey, 168 N.J. 413, 423 n.1 (2001) (quoting
L. 1993, c. 223, § 1).
32
ordinarily a remand should be required for resentencing.” Carey, 168 N.J. at424 (citing Miller, 108 N.J. at 122).
B.
We apply those principles to certain aspects of defendant’s sentence in
this appeal.
Defendant was sentenced for nineteen offenses committed in three
separate criminal episodes. Ten of those offenses arose from the February 28,
2011 incident in Cherry Hill; six were based on the March 3, 2011 incident in
Winslow Township; and two related to the March 29, 2011 incident in
Gloucester Township involving the stolen car.
The trial court properly applied the Yarbough factors when it sentenced
defendant to terms of incarceration running consecutively to the terms imposed
for crimes committed in different criminal episodes. It took into account “the
facts relating to the crimes and the following criteria”:
One, the crimes and their objectives were
predominantly independent of each other. Two, the
crimes involved separate acts of violence or threats of
violence. Three, the crimes are 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. Four, any of the crimes
involved multiple victims. And five, the convictions
for which the sentences are to be imposed are
numerous.
33
The court determined that the crimes committed by defendant on
February 28, 2011, March 3, 2011, and March 29, 2011 were “independent of
each other,” their objectives on each date “involved separate acts of violence
or threats of violence,” and “they were committed at different times and
places.”
The evidence supported the court’s findings that the crimes committed in
each criminal episode were independent of one another, that the objectives of
those crimes were distinct from one another, that they involved separate acts of
violence or threats of violence, and that they were committed at different times
and in different locations. See Yarbough, 100 N.J. at 643-44; see also State v.
Cassady, 198 N.J. 165, 181-82 (2009) (upholding the imposition of
consecutive sentences based on the trial court’s determination that the criminal
episodes were independent of one another and stressing that “the sentencing
court faithfully paired the Yarbough factors with the facts as found by the
jury”); State v. Ghertler, 114 N.J. 383, 391-92 (1989) (reviewing the reasons
advanced in imposing consecutive sentences and holding that “[t]he court’s
exercise of discretion to impose consecutive sentences was supported by a
separate statement of reasons”).
The court’s analysis upon imposing a consecutive sentence for the first-
degree kidnapping of the fourteen-year-old victim during the February 28,
34
2011 incident also satisfied Yarbough.5 That sentence was made consecutive
to the sentences for the other first-degree kidnappings and other crimes
defendant committed during that incident. As the trial court found, the child
and her sister were kidnapped approximately one hour before the first-degree
kidnapping of her father and the third-degree criminal restraint of her mother.
It was clearly within the trial court’s discretion to impose a sentence for her
kidnapping that was consecutive to defendant’s sentence for the other crimes
committed on that date.
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 Yarbough, warranting a remand for resentencing with respect to
those offenses.
For his conviction of second-degree unlawful possession of a weapon in
connection with the February 28, 2011 incident in Cherry Hill, the trial court
imposed a sentence consecutive to defendant’s sentences for first-degree
kidnapping and other crimes committed in that incident. 6 The court’s findings
5
The trial court acknowledged that the thirteen-year-old child was also
kidnapped, but did not impose a consecutive sentence for that offense.
6
By virtue of the court’s decision to make defendant’s sentence for unlawful
possession of a weapon consecutive to the sentences imposed for the
kidnapping offenses and other offenses, defendant’s aggregate sentence was
35
in support of that consecutive sentence were limited to a comment that “[t]he
elements of this offense are separate and distinct from the charges of
kidnapping. The defendant possessed the weapon and did not have a permit
for it, and there can be no free crimes.”
Although unlawful possession of a weapon could be viewed as
independent of other crimes committed with the weapon in some settings for
purposes of Yarbough’s third factor, see 100 N.J. at 644, nothing in N.J.S.A.
2C:44-5(a) or our case law compels such a result in every case. See, e.g., State
v. Copling, 326 N.J. Super. 417, 441-42 (App. Div. 1999) (holding that the
defendant’s sentences for murder and unlawful possession of a weapon should
run concurrently, because both statutes under which defendant was convicted
sought to protect the same victims, and the victims in the case “were part of
the group of victims in society whom the possession statute sought to
protect”). On remand, the court should reconsider its determination that
defendant’s sentence for unlawful possession of a weapon in that incident
should be consecutive to his sentences for other crimes committed on the same
date. The court should provide a more detailed explanation of its reasoning, as
Yarbough requires.
eight years longer than it would otherwise have been, and his term of parole
ineligibility was increased by four years.
36
For the March 3, 2011 incident in Winslow Township, the trial court
acted within its discretion when it imposed sentences for first-degree robbery
and fourth-degree unlawful taking of a means of conveyance that were
consecutive to defendant’s sentences for other offenses. The court, however,
imposed a sentence for defendant’s conviction of second-degree unlawful
possession of a weapon to run consecutively to defendant’s sentences for first-
degree robbery and other offenses committed in the same criminal episode. 7
Its findings were limited to a statement that “[t]he elements of this [offense]
are separate and distinct from the charge of armed robbery, and there can be no
free crimes.” That determination does not meet the requirements of Yarbough,
and should be reconsidered on remand. See 100 N.J. at 643-44.
Finally, the court should reconsider on remand its imposition of
consecutive sentences for defendant’s convictions of second-degree unlawful
possession of a weapon and fourth-degree unlawful taking of a means of
7
By virtue of the court’s decision to make defendant’s sentence for unlawful
possession of a weapon consecutive to the sentence imposed for the robbery
offense, defendant’s aggregate sentence was eight years longer than it would
otherwise have been, and his term of parole ineligibility was increased by four
years.
37
conveyance, arising from the March 29, 2011 incident in Gloucester
Township.8
As we have previously observed, the sentencing court’s focus “should be
on the fairness of the overall sentence.” Miller, 108 N.J. at 121. In
resentencing defendant on remand, the trial court should consider the fairness
of the aggregate sentence imposed for the eighteen offenses as to which
defendant’s convictions have been affirmed. See State v. Abdullah, 184 N.J.
497, 515 (2005) (reminding our courts “that when imposing either consecutive
or concurrent sentences, ‘[t]he focus should be on the fairness of the overall
sentence,’ and that they should articulate the reasons for their decisions with
specific reference to the Yarbough factors”). Thus, we caution the court on
remand to consider the overall sentence -- a necessary feature in any Yarbough
analysis.9
8
By virtue of the court’s decision to make defendant’s sentence for unlawful
taking by a means of conveyance consecutive to his sentence for unlawful
possession of a weapon, defendant’s aggregate sentence was increased by one
year.
9
We do not foreclose the parties from making any argument on remand
regarding the court’s imposition of consecutive or concurrent sentences.
38
V.
The judgment of the Appellate Division is affirmed in part and reversed
in part, and the matter is remanded to the trial court for further proceedings in
accordance with this opinion. We retain jurisdiction.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE PATTERSON’S opinion. JUSTICE
ALBIN filed an opinion, dissenting in part. JUSTICE SOLOMON did not
participate.
39
SUPREME COURT OF NEW JERSEY
A-79 September Term 2017
080753
State of New Jersey,
Plaintiff-Respondent,
v.
Keith V. Cuff,
Defendant-Appellant.
JUSTICE ALBIN, dissenting in part.
In February 2011, defendant and an accomplice entered a family’s home
to commit a robbery. Alone inside the house were four children, two of whom
were asleep. The men bound the hands of the two awake children, ages
thirteen and fourteen, and left them in an upstairs room. When the children’s
parents came home, the men confronted them at gunpoint and forced the father
to hand over two thousand dollars. The men then tied the father’s and
mother’s hands behind their backs and left the home. The father managed to
loosen his hands from the zip tie and then untie the hands of his wife and
children.
With the approval of both the State and defendant, the trial court charged
the jury on first-degree kidnapping and the lesser-included offense of second-
1
degree kidnapping. A defendant is guilty of first-degree kidnapping if the
State proves beyond a reasonable doubt that “he unlawfully confine[d] another
for a substantial period” for the purpose of committing a crime, such as
robbery, and did not release the victim unharmed or in a safe place prior to
apprehension. N.J.S.A. 2C:13-1(b)-(c); State v. Federico, 103 N.J. 169, 174
(1986). If the defendant “releases the victim unharmed and in a safe place
prior to apprehension,” then he is guilty only of second-degree kidnapping.
N.J.S.A. 2C:13-1(c).
The court submitted the written jury instructions and the verdict sheet to
the jury. The written instructions referred to first-degree kidnapping and
second-degree kidnapping, and gave the elements for both charges. Those
instructions also referred to first-degree robbery and second-degree robbery,
and gave the elements for both charges. Although the verdict sheet did not
refer to the crimes by degrees, it referred to the crimes by their elements.
Thus, the jury was able to correlate the written instructions to the verdict sheet
and see that the crimes listed on the verdict sheet -- identified by their
elements -- included first- and second-degree robbery and first-degree
kidnapping. No place on the verdict sheet listed second-degree kidnapping by
its elements or in any other manner. Unsurprisingly, after beginning its
deliberations, the jury sent a note to the court asking, “[i]f applicable, how do
2
we denote second degree on a charge in the verdict book?” The question had
to refer to the second-degree kidnapping charge because the only other first-
degree crime charged -- robbery -- included lines on the verdict sheet that
allowed the jury to find second-degree robbery.
After conferring with counsel, the court responded without correcting
the deficient verdict sheet or answering the jury’s question:
[M]y answer to you is this. You answer the questions
as they are posed on the verdict sheet. Okay? Each
individual question as posed. You, the jury, are not to
be concerned about the degree of the crime. That is in
the Court’s domain. So, you answer the questions as
posed, as we had talked about, you know, some of them,
you -- depending upon what your answer is to one, you
may go onto the next one, you may skip the next one,
as we discussed when I was giving you my final
instructions.
The jurors’ dilemma was that, on one hand, they had written jury
instructions advising them to return a verdict of second-degree kidnapping if
the State failed to prove that defendant did not release the victims unharmed or
in a safe place prior to apprehension but, on the other hand, they had a verdict
sheet that did not permit them to return a guilty verdict for second-degree
kidnapping.
In the absence of a place to indicate second-degree kidnapping, the
inadequate verdict form may very well have led the jury to convict defendant
3
of either a higher- or lesser-degree crime than the second-degree kidnapping
that they might otherwise have returned.
None of the parties suggested at trial, before the Appellate Division, or
in the briefing before this Court that there was not a rational basis for charging
second-degree kidnapping. Presumably, if this was a meritorious issue, the
State would have raised it at the trial and appellate levels or in its briefing
before this Court. Only in oral argument before this Court was the “no rational
basis” contention raised for the first time -- and now the majority has fastened
to this argument to render harmless the patently defective verdict sheet in this
case.
I respectfully dissent because the trial court properly charged on second-
degree kidnapping and the verdict sheet did not allow the jury to return a
verdict on that count. That omission constituted plain error -- an error clearly
capable of producing an unjust result. See R. 2:10-2.
I.
A.
We granted defendant’s petition for certification to address the issue “of
the verdict sheet’s omission of the charge of second-degree kidnapping.” 234
N.J. 315 (2018). That was our shorthand way of identifying the issue
presented by defendant: whether “the verdict sheet and the trial court’s
4
erroneous response to the jury’s question precluded the jury from convicting
defendant of second-degree kidnapping.” 1 The State did not file a cross-
petition arguing that the trial court did not have a rational basis to charge
second-degree kidnapping. None of the parties disputed the propriety of the
trial court charging the jury on second-degree kidnapping. The State did not
raise a challenge to the charge before the Appellate Division or in its briefing
to this Court. This Court did not grant certification on whether there was a
rational basis to charge second-degree kidnapping. “The jurisdiction of
appellate courts rightly is bounded by the proofs and objections critically
explored on the record before the trial court by the parties themselves.” State
v. Robinson, 200 N.J. 1, 19 (2009). The majority has declined to adhere to this
principle.
To save a verdict fatally compromised by a defective verdict sheet, the
majority reaches for a newly found issue -- whether there was a rational basis
to return a verdict of second-degree kidnapping. The majority’s argument is
that if the court wrongly gave the lesser-included charge, then the deficient
verdict sheet is rendered harmless. The trial court, however, charged the jury
on the lesser-included offense of second-degree kidnapping -- without
1
Defendant’s petition for certification adopted the arguments he presented
before the Appellate Division. This was one of those arguments, and the one
on which we granted certification.
5
objection from any party -- because there was a rational basis for doing so.
Whether defendant “release[d] the victim[s] unharmed and in a safe place prior
to apprehension,” N.J.S.A. 2C:13-1(c), was a quintessentially factual issue for
the jury to resolve. It was for the jury to determine whether leaving the
victims in their own home, despite the binding of their hands, constituted
releasing them unharmed and in a safe place.
N.J.S.A. 2C:13-1(c) of our kidnapping statute is a product of the Final
Report of the New Jersey Criminal Law Revision Commission. 1 The New
Jersey Penal Code: Final Report § 2C:13-1 at 57 (Criminal Law Revision
Comm’n 1971). The commentary to that statute explains that the purpose of
distinguishing between first-degree and second-degree kidnapping is “to
maximize the kidnapper’s incentive to return the victim alive.” 2 The New
Jersey Penal Code: Final Report § 2C:13-1 cmt. 7 at 187 (quoting Model Penal
Code 15-16 (Am. Law Inst., Tentative Draft No. 11, 1960)). By the second-
degree grading provision in the kidnapping statute, a defendant is incentivized
to release the victim unharmed and in a safe place.
On the record before us, no one disputes that there was a rational basis
for the jury to return a verdict of first-degree kidnapping. But that does not
mean that a rational juror could not have returned a verdict of second-degree
kidnapping, finding that the victims were released unharmed and in a safe
6
place -- their home -- even though their hands were tied. The majority has
decided to assume the role of factfinder -- a role it is forbidden to play in a
criminal trial. Our Court has repeatedly stated that “it is the jury, and the jury
alone, that determines the facts” and that the jury’s factfinding duty is
“nondelegable and nonremovable.” See, e.g., State v. Ingenito, 87 N.J. 204,
211 (1981). “The responsibility of the jury in the domain of factual
findings . . . is so pronounced and preeminent” that a jury may “refuse to
return a verdict in spite of the adequacy of the evidence” -- even “in the face of
overwhelming evidence of guilt.” Id. at 211-12. The majority has given short
shrift to these injunctions by delegating to itself the factfinding role in this
case.
B.
Because the trial court correctly charged the jury on second-degree
kidnapping, the jury had a right to a correct verdict sheet -- a verdict sheet that
allowed the return of a verdict on second-degree kidnapping. The verdict
sheet is an “essential component” in guiding the jury through the deliberative
process. State v. Galicia, 210 N.J. 364, 387 (2012). As in this case, an
incomplete and inaccurate verdict sheet will thwart the jury in determining the
proper grade of guilt. See R. 3:19-1(b) (“A written verdict sheet shall be
submitted to the jury . . . to facilitate the determination of the grade of the
7
offense under the Code of Criminal Justice.”). After the court instructs the
jurors on the law, “they are left alone with the directions on the verdict form.”
State v. Nelson, 173 N.J. 417, 449 (2002).
Here, the jurors faced a maddening prospect. The court verbally charged
on second-degree kidnapping, then provided the jury with a written charge of
its instructions -- and yet the verdict sheet did not allow the jury to return a
verdict on second-degree kidnapping. When the confused jury sent a message
to the court asking how it could “denote second degree on a charge in the
verdict book,” the court told the jury to “answer the questions as they are
posed on the verdict sheet.” But, of course, nothing on the verdict sheet
referred to second-degree kidnapping.
The Attorney General sensibly argued that the omission of second-
degree kidnapping on the verdict sheet prejudiced the State because the error
may have encouraged the jury to return convictions on lesser offenses and
even acquittals on other first-degree kidnapping counts in the indictment. By
that same logic, however, defendant was equally prejudiced. The defective
verdict sheet may very well have encouraged the jury to return three first-
degree kidnapping convictions in the absence of a second-degree kidnapping
option. For example, during the February 2011 incident, the father and mother
both had their hands bound and were left in their home after the robbery. The
8
father’s and mother’s scenarios were virtually indistinguishable. In the
absence of a second-degree kidnapping option, however, the jury returned a
guilty verdict of first-degree kidnapping in the case of the father and a guilty
verdict of disorderly persons false imprisonment in the case of the mother.
The defective verdict sheet was clearly capable of causing a compromised
verdict and therefore constituted plain error. See R. 2:10-2 (permitting an
appellate court to “notice plain error” when that error “is of such a nature as to
have been clearly capable of producing an unjust result”).
Defendant faced extremely prejudicial consequences as a result of the
defective verdict sheet. The difference in the sentencing ranges for first- and
second-degree kidnapping are significant: the range for first-degree
kidnapping is fifteen to thirty years’ imprisonment, whereas the range for
second-degree kidnapping is only five to ten years’ imprisonment. N.J.S.A.
2C:13-1(c)(1); N.J.S.A. 2C:43-6(a)(2).
Defendant was sentenced to two consecutive twenty-three-year terms on
two first-degree kidnapping convictions and to a concurrent twenty-three-year
term on the third first-degree kidnapping conviction. Thus, on three first-
degree kidnappings, defendant was sentenced to an aggregate forty-six-year
term of imprisonment, in addition to consecutive sentences imposed for other
convictions. Had defendant been convicted of second-degree kidnappings, his
9
maximum sentence on those charges would have been twenty years -- two ten-
year terms to run consecutively, and one ten-year term to run concurrently.
The first-degree kidnapping sentences comprise more than half of the entirety
of the terms of imprisonment defendant must serve for his crimes.
Given the offenses committed by defendant, few may be sympathetic to
his plight. But under our constitutional framework, defendant was entitled to a
fair trial -- regardless of the nature of those offenses. Defendant had a right to
fair consideration of all lesser-included offenses rationally based in the record.
The defective jury verdict form deprived him of that right. Defendant
therefore should receive a new trial.
II.
I respectfully dissent from the majority’s determination that the record
did not provide a rational basis for the trial court to charge on second -degree
kidnapping. I concur with the sentencing portion of the majority’s opinion.
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