STATE OF NEW JERSEY VS. RICHARD WHATLEYÂ (13-12-3038, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5592-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD WHATLEY,
Defendant-Appellant.
______________________________________________
Submitted May 31, 2017 – Decided July 18, 2017
Before Judges Messano and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 13-12-3038.
Joseph E. Krakora, Public Defender, attorney
for appellant (Susan Brody, Deputy Public
Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Barbara
A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Richard Whatley was convicted of
the lesser-included offense of second-degree passion-provocation
manslaughter, N.J.S.A. 2C:11-4(b)(2), and second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b). The judge sentenced
defendant to a ten-year period of imprisonment, with an 85% period
of parole ineligibility under the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, on the manslaughter conviction. He imposed a
consecutive eight-year term with a mandatory four-year period of
parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c),
on the weapons charge.
Defendant raises the following issues on appeal:
POINT I
THE COURT'S PURPORTED LIMITING INSTRUCTION AS
TO TAYLOR KENNEDY'S REBUTTAL TESTIMONY FAILED
TO IDENTIFY THE SOLE LEGITIMATE PURPOSE FOR
WHICH THE TESTIMONY COULD BE CONSIDERED OR TO
INSTRUCT THAT IT COULD NOT BE USED FOR ANY
OTHER PURPOSE, THUS GREATLY PREJUDICING
DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised
Below)
POINT II
THE PROSECUTOR COMMITTED MISCONDUCT IN A
NUMBER OF INSTANCES THROUGHOUT THE TRIAL.
A. The Prosecutor Impermissibly Bolstered the
Credibility Of the Lead Detective by
Questioning Him as to Why He Sought Charges
Against Defendant At the Time He Did.
B. The Prosecutor Repeatedly Emphasized to the
Jury That Shaquanah Williams Was Fearful of
Retaliation For her Testimony, Strongly
Implying That Her Fear was Justified.
2 A-5592-14T2
C. The Prosecutor's Summation Included A
Crucial Statement That Was Based on
Information Not Found In The Record And That
Was Factually Inaccurate.
D. The Prosecutor Overstepped the Bounds of
Permissible Questioning in His Cross-
Examination of [Defendant] About His Failure
to Go to Police with His Self-Defense Claim.
POINT III
THE COURT ERRED IN IMPOSING A CONSECUTIVE
SENTENCE ON THE WEAPON POSSESSION CHARGE AND
IN IMPOSING A MANIFESTLY EXCESSIVE TERM ON
EACH CHARGE.
We have considered these arguments, in light of the record and
applicable legal standards. We affirm.
I.
We briefly summarize the evidence adduced at trial, limited
to that which is necessary to place defendant's legal arguments
in proper context.
On May 27, 2013, the Kennedy family hosted a barbecue for
family and friends at their home in Newark. Rayquan Williamson
organized the annual barbeque and approximately thirty to forty
people were present at various times of the day. Rayquan's younger
sister, Taylor Kennedy, invited defendant and his friend,
identified only as Max, to the barbecue. Toward the end of the
evening, an argument ensued, causing Williamson to escort
defendant and Max out of the party. A derogatory remark aimed at
3 A-5592-14T2
one of the women at the party led to a physical altercation
involving several people in front of the house.
Shots rang out. Williamson saw defendant with a small
revolver in his hand. Williamson and his friend briefly followed
defendant and Max as they retreated down the street, with defendant
repeating, "he hit me, he hit me first", and "he popped on me."
Williamson heard police sirens, turned back to the house and found
Teshon Clegg, a close family friend who lived nearby and was at
the party, laying lifeless in the street. Clegg died of a single
gunshot wound to the chest.
Williamson's sister, Janeal Ferguson, said Max instigated the
trouble, and defendant was relatively calm during the party and
as he and Max were leaving. As the melee ensued in front of the
house, Ferguson saw Clegg strike defendant and pin him against a
parked car. She went into the backyard to clean up because the
party was winding down and heard two gunshots. When she ran to
the front of the house, Clegg was laying in the street several
houses away.
Shaquanah Williams was Williamson's girlfriend. While at the
barbecue, she overheard defendant say he had a "pocket rocket," a
slang term for a gun. She told Williamson she was leaving because
she was "scared" and knew "somebody had a gun on them." Williams
was about to get into her car when she saw Williamson "tussling
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with Max." As she moved toward them, Williams saw defendant fire
two shots in Clegg's direction.
A neighbor, who did not identify defendant in court, testified
to seeing a man with a white shirt pointing a gun in the direction
of the crowd and hearing two shots. Other witnesses testified
that defendant was wearing a white shirt. The neighbor called
9-1-1 after hearing Clegg scream that he was shot.
The police witnesses described a hectic scene when they
responded, with fifty or sixty people milling around. Police
found a .22 caliber bullet at the scene, which was fired from the
same gun as the bullet removed from Clegg's body at autopsy.
Police conducted an investigation and attempted, unsuccessfully,
to locate defendant. On June 11, 2013, police issued a warrant
for defendant's arrest. Defendant turned himself into authorities
on June 17, 2013.
Defendant testified. He stated Max began an argument with a
woman at the party, which soon escalated into a melee, during
which Clegg punched defendant in the head and tackled him to the
ground. Defendant denied having a gun that evening, but, instead,
claimed Clegg had a gun, which fell to the ground and discharged
as Clegg lifted up his shirt to display the weapon. Both men
grabbed for the gun, but defendant retrieved it. When Clegg tried
to grab defendant's hand, a second round discharged.
5 A-5592-14T2
Clegg ran off before collapsing. Defendant still had the gun
in his hand as the crowd started to surround him. He ran off,
throwing the gun in a manhole before arriving at his cousin's
house. When asked why he threw the gun away, defendant testified,
"I'm not used to walking around carrying guns. That's not . . .
what I do. That's not the life that I live." Defendant's family
arranged for him to surrender after learning about the arrest
warrant.
During cross-examination, the prosecutor repeatedly asked
defendant if he went to the police on the night of the shooting
or any time prior to the issuance of the arrest warrant. Most of
these questions prompted no objection. However, when the
prosecutor asked if anything "prevented [defendant] from telling"
police his version of events on June 17, 2013, the day he
surrendered, defense counsel's objection prompted an extended
legal argument outside the presence of the jury, during which
defense counsel moved for a mistrial.1
The judge denied defendant's mistrial motion, ordered the
prosecutor to cease questioning defendant about his pre-arrest
silence, and, when the proceedings reconvened, the judge gave the
1
Over defendant's objection, the prosecutor had earlier asked one
of the detectives, Eric Manns, if he had taken a statement from
defendant when defendant surrendered. The detective responded in
the negative.
6 A-5592-14T2
following instruction to the jury: "A defendant's silence, while
in custody, under interrogation, or at or near the time of his
arrest, cannot be used against him." Defendant did not object to
the charge nor ask for any additional instruction.
Defendant's cousin also testified. When he saw defendant
late in the evening of May 27, defendant was "shaken up," "scared"
and "frantic". Defendant told his cousin he had been in an
altercation with another person, who was unintentionally shot when
both men reached for a gun.
The prosecutor called Taylor Kennedy as a rebuttal witness.
She had known defendant for about a year and spent time with him
nearly every day. Toward the end of the barbecue, Kennedy heard
gunshots and saw defendant holding a silver "little cowboy gun,
like a revolver." Kennedy testified that she saw defendant with
the same gun on a prior occasion at Max's house, although she was
vague about exactly when this occurred. Kennedy stated that
defendant grew angry with others in the house on that day and
fired the gun into the ceiling.
After several days of deliberations, the jury returned the
guilty verdicts referenced above and acquitted defendant of
possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-
4(a).
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II.
Although we have not been provided with transcripts of any
pre-trial proceedings, the judge had apparently barred the State
from introducing evidence of defendant's possession of a gun prior
to the shooting. However, after defendant testified that he never
possessed a gun, had a general aversion to them and the gun
belonged to Clegg, the prosecutor sought to call Kennedy as a
rebuttal witness.
After conducting a N.J.R.E. 104 hearing and over defendant's
objection, the judge concluded defendant's testimony had "opened
the door." He conducted an analysis pursuant to State v. Cofield,
127 N.J. 328 (1992), and agreed to permit Kennedy's testimony.
The judge provided the jury with the following limiting
instruction, which included defense counsel's specific suggestions
and which defense counsel ultimately approved:
[T]he State has just introduced evidence that
the defendant allegedly possessed a handgun
at a date prior to May 27th, 2013, the date
of the alleged murder.
Normally such evidence is not permitted
under our rules of evidence. Our rules
specifically exclude evidence that a defendant
has committed other crimes, wrongs or acts
when it is offered only to show that he has a
disposition or tendency to do wrong, and
therefore must be guilty of the charged
offenses. Before you give any weight to this
evidence, you must be satisfied that the –-
that the defendant committed the other crime,
8 A-5592-14T2
wrong, or act. If you are not so satisfied,
you may not consider it for any purpose.
However, our rules do permit evidence of
other crimes, wrongs, or acts when the
evidence is used for certain specific, narrow
purposes.
In this case, the State has introduced
evidence that the defendant allegedly
possessed a handgun at a date prior to May
27th, 2013, the date of the alleged homicide,
to show absence of mistake or accident as to
whether the defendant allegedly possessed a
handgun on the evening of May 27th, 2013. The
State contends that the defendant possessed a
handgun on May 27th, 2013; whereas the defense
contends that the decedent, Teshon Clegg, was
the one who allegedly possessed the handgun
on May 27th, 2013, just prior to Mr. Clegg
being shot.
Whether this evidence does in fact
demonstrate the absence of mistake or accident
it is for you to decide. You may decide that
the evidence does not demonstrate the absence
of mistake or accident and is not helpful to
you at all. In that case, you must disregard
the evidence. On the other hand, you may
decide that the evidence does demonstrate the
absence of mistake or accident and use it for
that specific purpose.
However, you are not –- however, you may
not use this evidence to decide that the
defendant has a tendency to commit crimes or
that he is a bad person. That is, you may not
decide that just because the defendant had
committed other crimes, wrongs, or acts, he
must be guilty of the present crime. I have
admitted the evidence only to help you decide
the specific question of the absence of
mistake or accident. You may not consider it
for any other purpose and you may not find the
defendant guilty now simply because the State
9 A-5592-14T2
has offered evidence that he committed other
crimes, wrongs, or acts.
The judge reiterated the limiting instruction during the final
jury charge.
Defendant now argues the limiting instruction was "erroneous,
misleading and inadequate," because he never contended he
possessed the gun "by mistake or accident." Rather, the only
point of Kennedy's testimony was to identify the murder weapon as
a revolver belonging to defendant, not Clegg. Defendant argues
the erroneous instruction, therefore, permitted the jury to use
the evidence to impeach his credibility, which, he argues, was
impermissible. We find these arguments unpersuasive.
Initially, defendant's argument that N.J.R.E. 404(b) evidence
is not admissible to impeach the credibility of his trial testimony
is plainly wrong. He cites State v. Skinner, 218 N.J. 496 (2014),
but that reliance is misplaced. There, the Court repeated its
discouragement of "the use of other-crime evidence merely to
bolster the credibility of a testifying witness." Id. at 520
(emphasis added). Rather, this case is more like State v. Lykes,
192 N.J. 519 (2007). There, the Court concluded questioning about
the "defendant's prior involvement with a vial of cocaine was
relevant to the jury's assessment of defendant's credibility when
10 A-5592-14T2
he testified that he did not know what was in the vial." Id. at
537.
Moreover, Kennedy's testimony was relevant to prove a
contested fact at trial, not just to impeach defendant's testimony.
The State's witnesses claimed defendant had the gun and shot Clegg.
Defendant asserted Clegg's shooting was unintentional, i.e., an
accident or mistake. The charge accurately focused the jury's
attention on the relevancy of Kennedy's testimony as to defendant's
prior possession of the very same gun.
In short, the instruction as given was not plain error. See,
e.g., State v. Brown, 190 N.J. 144, 160 (2007) ("Plain error
. . . is [l]egal impropriety in the charge prejudicially affecting
the substantial rights of the defendant sufficiently grievous to
justify notice by the reviewing court and to convince the court
that of itself the error possessed a clear capacity to bring about
an unjust result." (quoting State v. Torres, 183 N.J. 554, 564
(2005))).
III.
Defendant argues the prosecutor's misconduct requires
reversal. While prosecutors are entitled to zealously argue the
merits of the State's case, State v. Smith, 212 N.J. 365, 403
(2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed.
2d 558 (2013), they occupy a special position in our system of
11 A-5592-14T2
criminal justice. State v. Daniels, 182 N.J. 80, 96 (2004). "[A]
prosecutor must refrain from improper methods that result in a
wrongful conviction, and is obligated to use legitimate means to
bring about a just conviction." Ibid. (quoting State v. Smith,
167 N.J. 158, 177 (2001)). Even if the prosecutor exceeds the
bounds of proper conduct, "[a] finding of prosecutorial misconduct
does not end a reviewing court's inquiry because, in order to
justify reversal, the misconduct must have been 'so egregious that
it deprived the defendant of a fair trial.'" Smith, supra, 167
N.J. at 181 (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
In Points IIA and IID, the arguments involve the prosecutor's
direct examination of Detective Manns and cross-examination of
defendant. The contentions made in Points IIB and IIC relate to
the prosecutor's summation. We find none of the objected to
conduct, singly or collectively, requires reversal.
A.
Defendant argues the prosecutor improperly questioned
Detective Manns by asking why the detective did not issue an arrest
warrant immediately after the shooting, even though defendant was
a "target" as of May 28. Defendant contends the testimony
bolstered the credibility of Detective Manns, was largely
irrelevant and was highly prejudicial.
In particular, defendant objects to the following exchange:
12 A-5592-14T2
Prosecutor: Why did you seek charges in this
case?
Detective: I seeked [sic] charges on June
11th, because . . . I had enough evidence to
charge [defendant]. . . . [A]s a police
detective, I was satisfied that there was
enough evidence from enough witnesses to
charge [defendant].
Defense counsel immediately objected on relevancy grounds, and,
before the court ruled, the prosecutor agreed to "stop" the
detective "right there."
We agree this exchange was improper, because it implied police
had sufficient evidence to conclude defendant committed the
homicide. See, e.g., State v. Frisby, 174 N.J. 583, 592-96 (2002)
(explaining impropriety of police testimony regarding opinions
formed during investigation as to credibility of witnesses). We
are convinced, however, that this exchange does not require
reversal.
As the Court has explained:
[A] trial is not a perfectly scripted and
choreographed theatrical presentation;
rather, it is an extemporaneous production
whose course is often unpredictable given the
vagaries of the human condition. Attorneys
will sometimes pose inartfully crafted
questions, and even the most precise question
may bring an unexpected response from a
witness. In any trial, "inadmissible evidence
frequently, often unavoidably, comes to the
attention of the jury."
13 A-5592-14T2
[State v. Yough, 208 N.J. 385, 397 (2011)
(quoting State v. Winter, 96 N.J. 640, 646
(1984)).]
Here, defense counsel objected and, before the judge could sustain
the objection, the prosecutor ceased further questioning.
Moreover, we disagree with defendant's contention that the
prosecutor's questioning leading up to this exchange was
irrelevant or bolstered the detective's credibility. From the
prosecutor's opening statement, the State contended defendant fled
the scene and could not be located for nearly three weeks after
the shooting, implying the jury should ultimately reject
defendant's version of events. The detective's earlier testimony
detailed the efforts made to find defendant after the shooting.
The judge charged flight in his final jury instructions. In short,
while some of the testimony was improper, its admission does not
require reversal. See id. at 397-98 ("[W]hen inadmissible evidence
erroneously comes before the jury, an appellate court should not
order a new trial unless the error was 'clearly capable of
producing an unjust result.'" (quoting R. 2:10-2)).
B.
Defendant next argues the prosecutor's extensive cross-
examination regarding defendant's failure to voluntarily approach
law enforcement prior to his surrender and provide his version of
events was improper and violated defendant's right to remain
14 A-5592-14T2
silent. He contends the judge's limiting instruction was
insufficient. We disagree.
In Brown, supra, 190 N.J. at 148, the Court considered whether
the prosecutor could cross-examine the defendant, who fled after
committing a vicious assault, about his failure to assert that he
acted in self-defense prior to his testimony at trial. The Court
stated that "once the defendant elects to testify, similar to
every other witness, the defendant has an obligation to tell the
truth on the witness stand." Id. at 158 (citing State v. Burris,
145 N.J. 509, 530 (1996)). The Court held "[w]hen the pre-arrest
silence does not involve governmental compulsion, the State may
fairly cross-examine defendant concerning his pre-arrest conduct
as it bears on his credibility." Ibid. "[W]hen the objective
circumstances demonstrate that a reasonable person in [the]
defendant's position would have acted differently, the State may
attempt to impeach defendant on that pre-arrest conduct or
silence." Id. at 159.2
2
The Court also held that the judge "should instruct the jury
that the evidence of defendant's pre-arrest conduct or silence is
admitted for the limited purpose of impeaching defendant's
credibility and that it cannot be used as evidence of defendant's
guilt." Brown, supra, 190 N.J. at 159.
Here, the judge ultimately ordered the prosecutor to cease
questioning defendant about his pre-arrest silence. After his
mistrial motion was denied, defense counsel did not object to the
instructions given by the judge nor request any further instruction
15 A-5592-14T2
Defendant argues Brown was wrongly decided, the circumstances
in this case did not permit a conclusion that it was reasonable
for defendant to have acted differently and the prosecutor's
relentless questioning about his pre-arrest silence was
prejudicial. We are unpersuaded by these arguments.
The Court reiterated the basic holding of Brown in State v.
Stas, 212 N.J. 37, 58 (2012) ("[P]re-arrest silence that is not
'at or near' the time of arrest, when there is no government
compulsion and the objective circumstances demonstrate that a
reasonable person in a defendant's position would have acted
differently, can be used to impeach that defendant's credibility
with an appropriate limiting instruction."). Defendant claims
that he acted reasonably under the circumstances by not coming
forward because he had received threats on his life immediately
after the shooting. If anything, that cuts the other way, because
a reasonable person who acted in self-defense and only fled the
scene in fear would likely have sought protection from law
enforcement. The prosecutor's cross-examination was extensive,
but much of it elicited no objection, and we defer to the judge's
limiting the use of the testimony to impeachment purposes. We
cannot conclude that the failure to give an instruction limiting
the use of defendant's pre-arrest silence to impeachment purposes
was, in and of itself, plain error. R. 2:10-2.
16 A-5592-14T2
discretion in matters involving the conduct of the proceedings and
control of cross-examination. N.J.R.E. 611.
C.
Defendant argues the prosecutor's summation requires
reversal. "Our task is to consider the fair import of the State's
summation in its entirety." State v. Jackson, 211 N.J. 394, 409
(2012) (internal quotation marks and citation omitted). The
prosecutor is permitted to vigorously rebut specific arguments
made by defense counsel. See State v. Mahoney, 188 N.J. 359, 376-
77 (2006) (holding a "prosecutor's comment[] . . . placed an
unforgiving and harsh glare on defendant's . . . defense" but was
permissible). "Whether particular prosecutorial efforts can be
tolerated as vigorous advocacy or must be condemned as misconduct
is often a difficult determination to make. In every instance,
the performance must be evaluated in the context of the entire
trial . . . ." State v. Negron, 355 N.J. Super. 556, 576 (App.
Div. 2002).
Defendant argues the prosecutor improperly commented on
defendant's claim that Clegg's gun accidently fired when it hit
the ground by telling jurors, "[G]uns have to be fired. They're
inanimate objects, kind of like this pen. If you don't use them,
they don't work. Somebody pulled that trigger. That gun just
17 A-5592-14T2
didn't fall and go off." He argues significant academic studies
support the conclusion that guns accidently fire when dropped.
There was no objection to the prosecutor's comment, and while
it might not be empirically accurate, it invited the jury to make
a reasonable inference that the gun probably did not misfire. In
the scheme of things, the comment was insignificant.
Defendant's second argument stems from Williams' trial
testimony, during which the judge permitted the prosecutor to ask
her on direct examination why her trial testimony differed from
her prior statement to police. She explained that she was seven
months pregnant at the time, "didn't want to be involved" and told
police she was inside her car because she did not want to testify
in open court. She told jurors she was "fearful."
In his summation, defense counsel vigorously attacked
Williams' credibility, citing her inconsistent statements. In his
summation, the prosecutor referenced William's demeanor during her
tearful testimony and implied she feared defendant who she saw
"shoot an unarmed man."
Defendant argues the summation comments implied he was a
dangerous man whose mere presence could intimidate witnesses, even
though there was no proof he had engaged in such conduct. The
comments would have been better stated in more general terms,
since it is an unfortunate reality, not lost on jurors, that
18 A-5592-14T2
witnesses choose to remain uninvolved for a variety of reasons,
including unspecified fears. However, given the evidence and
considering the summation as a whole, we cannot conclude the
prosecutor's comments denied defendant his right to have the jury
fairly evaluate the evidence against him. See, e.g., State v.
Echols, 199 N.J. 344, 360 (2009) ("Reversal is justified when the
prosecutor['s] . . . conduct was 'so egregious as to deprive
defendant of a fair trial.'" (quoting State v. Wakefield, 190 N.J.
397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169
L. Ed. 2d 817 (2008))).
IV.
Defendant argues the imposition of consecutive sentences was
inappropriate, and the sentences were excessive. We disagree and
affirm.
We begin by noting that "[a]ppellate review of the length of
a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011).
As the Court has reiterated:
The appellate court must affirm the sentence
unless (1) the sentencing guidelines were
violated; (2) the aggravating and mitigating
factors found by the sentencing court were not
based upon competent and credible evidence in
the record; or (3) "the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience."
19 A-5592-14T2
[State v. Fuentes, 217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)).]
Furthermore, "trial judges have discretion to decide if sentences
should run concurrently or consecutively." Miller, supra, 205
N.J. at 128. "When a sentencing court properly evaluates the
Yarbough factors3 in light of the record, the court's decision
3
The Yarbough factors are:
(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;
20 A-5592-14T2
will not normally be disturbed on appeal." Miller, supra, 205
N.J. at 129.
Here, the judge carefully considered the appropriate
aggravating factors and mitigating factors urged by defense
counsel. He noted that, although defendant was only nineteen when
he committed these crimes and had no prior indictable convictions,
defendant had prior juvenile adjudications and was an self-
acknowledged member of the Bloods street gang. He credited
defendant with certain mitigating factors, but found they were
outweighed by the aggravating factors.
With respect to imposing consecutive sentences, citing
Yarbough and Miller, the judge stated defendant's unlawful
possession of the handgun was a crime separate from the homicide.4
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense[.]
[State v. Yarbough, 100 N.J. 627, 643-44
(1985), cert. denied, 475 U.S. 1014, 106 S.
Ct. 1193, 89 L. Ed. 2d 308 (1986).]
A sixth factor, imposing an overall outer limit on consecutive
sentences, was superseded by legislative action. See State v.
Eisenman, 153 N.J. 462 (1998).
4
The State argues a consecutive sentence for the firearm
possession was appropriate given defendant's possession of the gun
on a date prior to the shooting. The judge specifically did not
justify the sentence on this ground, and we reject the argument
because defendant was never charged with possession of the handgun
on any day other than the date of the homicide.
21 A-5592-14T2
He imposed consecutive sentences because "there shall be no free
crimes committed in the system, and . . . these were separate and
independent crimes."
We accord substantial deference to the trial judge's
decision, both as to the sentences imposed and whether they are
to be served concurrently or consecutively. The judge did not
mistakenly exercise his broad discretion in this regard, and we
find no basis to reverse defendant's sentence.
Affirmed.
22 A-5592-14T2