STATE OF NEW JERSEY VS. LAWRENCE CARTER, JR. (13-10-3174, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-3994-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAWRENCE CARTER, JR.,
Defendant-Appellant.
____________________________________________
Submitted April 25, 2017 – Decided August 11, 2017
Before Judges Koblitz and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
13-10-3174.
Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret McLane, Assistant
Deputy Public Defender, of counsel and on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Maura G. Murphy,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
A police officer stopped defendant Lawrence Carter, Jr. for
careless driving and failing to maintain a light on his vehicle's
license plate. When he failed to produce his vehicle registration,
another officer searched the vehicle's glove compartment for
defendant's registration card and discovered a handgun. A
subsequent search of the vehicle pursuant to a warrant revealed
additional weapons. Defendant was convicted by a jury of
committing all of the multiple weapons offenses charged in an
indictment.1 The court sentenced him to an aggregate thirteen-
year term, with a nine-year period of parole ineligibility.
Defendant appeals from his judgment of conviction,
challenging the denial of his suppression motion, the rejection
of his claim of discriminatory jury selection, and his sentence.
He specifically argues:
POINT I – BECAUSE THE OFFICER HAD
NO JUSTIFICATION TO CONDUCT A
WARRANTLESS SEARCH FOR THE CAR'S
REGISTRATION AND INSURANCE
1
The jury convicted defendant of two counts of second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); two counts
of second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); two counts of second-degree certain persons
not to possess weapons, N.J.S.A. 2C:39-7(b); one count of third-
degree possession of weapon for an unlawful purpose, N.J.S.A.
2C:39-4(d); one count of fourth-degree possession of a defaced
firearm, N.J.S.A. 2C:39-3(d), one count of fourth-degree
possession of weapon (hollow nose or dum-dum bullets), N.J.S.A.
2C:39-3(f); and, one count of fourth-degree unlawful possession
of a weapon (stun gun), 2C:39-5(d).
2 A-3994-14T3
INFORMATION, THE GUNS FOUND IN THE
CAR MUST BE SUPPRESSED.
POINT II – THE COURT FAILED TO
CONDUCT THE THIRD STEP OF THE
GILMORE[2] ANALYSIS, REQUIRING
REVERSAL OF DEFENDANT'S
CONVICTIONS.
POINT III – THE COURT IMPROPERLY
IMPOSED CONSECUTIVE SENTENCES ON
THE GUN POSSESSION AND CERTAIN
PERSONS CONVICTIONS, RENDERING
DEFENDANT'S 13-YEAR WITH A NINE-
YEAR PAROLE DISQUALIFIER MANIFESTLY
EXCESSIVE.
We have considered defendant's arguments in light of our
review of the record and the applicable legal principles. We
affirm.
I.
We begin our review by considering defendant's challenge to
the denial of his suppression motion. The two police officers who
arrested defendant and his co-defendant were the only witnesses
to testify at the suppression hearing. The facts derived from
their testimony are summarized as follows.
On June 1, 2011, Voorhees Police Officer Thomas Macauley
observed defendant's car stop at an intersection with the left
turn signal engaged. When the light at the intersection turned
green, defendant began to turn left, then abruptly turned right.
2
State v. Gilmore, 103 N.J. 508 (1986).
3 A-3994-14T3
Macauley followed defendant and observed that defendant's vehicle
did not have a light on its license plate. After continuing to
follow defendant for a short time, Macauley activated his vehicle's
overhead lights and conducted a traffic stop based upon defendant's
careless driving and the broken light on his license plate.
After defendant pulled over, the officer ran the vehicle's
license plate and discovered the car was registered to defendant
and not reported stolen. When he approached the vehicle, Macauley
observed defendant in the driver's seat, codefendant in the front
passenger seat, and a woman in the back seat.
While defendant remained seated in his car, Macauley asked
him for his license, registration, and insurance. Defendant
initially stated he did not have a license, but eventually produced
a New Jersey driver's license after being asked multiple times.
Although provided with the opportunity to do so, defendant never
produced a registration or other proof of ownership or insurance.
The officer asked defendant to exit the vehicle. When he
inquired what defendant was doing in the area, defendant initially
stated he was coming from Camden and heading towards an out of
town location, but eventually told Macauley "he did not know why
he was in the area." The officer made various observations about
defendant's demeanor that led him to believe defendant may attempt
to flee and that he was a threat to the officer's safety. Macauley
4 A-3994-14T3
conducted a pat down of defendant but did not discover a weapon.
He also became concerned about the conduct of defendant's
codefendant and the woman inside the car. They gave inconsistent
explanations as to why they were in the area. He saw codefendant
reaching around the floor of the front seat, not keeping his hands
in plain sight. After the officer removed codefendant, the woman
tried to climb into the front seat and appeared to be very nervous.
Macauley conducted a pat down of codefendant that also did not
yield any weapons.
During Macauley's encounter with defendant and his
passengers, Officer Anthony Del Palazzo arrived on the scene.
Macauley returned to his vehicle to search for outstanding warrants
and discovered that both men had criminal records and that
codefendant had outstanding warrants for his arrest. Macauley
arrested and searched codefendant and discovered latex gloves and
a bandana.
Macauley asked Del Palazzo to search defendant's vehicle for
a registration card or other proof of ownership since none had
been provided. Del Palazzo searched the center console and then
the glove compartment, where he discovered a loaded handgun.
Macauley immediately placed defendant and the woman under arrest.
He issued summonses to defendant for careless driving, N.J.S.A.
39:4-97, and failing to maintain required lamps, N.J.S.A. 39:3-
5 A-3994-14T3
66. The police later obtained a warrant to search the rest of the
vehicle and that search revealed additional weapons and other
contraband.3
After considering the officers' testimony, the exhibits
admitted into evidence, and counsels' arguments, the court denied
defendant's motion, but later reconsidered the reasoning for the
denial after defendant filed a motion for reconsideration. The
court set forth its reasons for reconsideration and again denied
defendant's motion on the record on August 7, 2012, in a
comprehensive oral decision.
Initially, the court summarized the witnesses' testimony and
found the officers' testimony to be credible. The court explained
why it found that Macauley properly stopped defendant for the
motor vehicle violations he observed and its conclusion that the
officer was justified in "ordering defendants out of the vehicle
and subsequently patting them down for weapons."
The court next addressed whether the warrantless search of
the glove compartment violated defendant's Fourth Amendment
3
A subsequent search of the entire vehicle pursuant to a search
warrant resulted in the police also discovering a revolver with a
defaced serial number, loaded with three hollow point bullets, a
stun gun, ammunition stashed within a latex glove, two rolls of
duct tape, multiple pairs of gloves, and two ski masks. Defendant
does not challenge the authorized search on appeal.
6 A-3994-14T3
rights. The court cited State v. Holmgren, 282 N.J. Super. 212
(App. Div. 1995), which it described as holding that "[f]ailure
to produce the vehicle's registration raises a reasonable
suspicion that the vehicle is stolen[; under such circumstances
an] . . . officer may lawfully conduct a limited warrantless search
of areas in the vehicle where such papers may normally be kept by
an owner." The court found, "based upon the fact that the
ownership of the vehicle had not been established by the defendants
. . . . [T]he officer was entitled to look into areas in the
vehicle in which evidence of ownership might be expected to be
found and that would include the glove compartment as well as the
center console." Additionally, relying on State v. Bruzzese, 94
N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct.
1295, 79 L. Ed. 2d 695 (1984), the court concluded the State
established the plain view exception applied, justifying the
seizure of the weapon.
Our review of the denial of a suppression motion is limited.
See State v. Handy, 206 N.J. 39, 44 (2011). We review a motion
judge's factual findings in a suppression hearing with great
deference. State v. Gonzales, 227 N.J. 77, 101 (2016). We "must
uphold the factual findings underlying the trial court's decision
so long as those findings are supported by sufficient credible
evidence in the record." State v. Gamble, 218 N.J. 412, 424
7 A-3994-14T3
(2014); see also State v. Scriven, 226 N.J. 20, 32-33 (2016). We
defer "to those findings of the trial judge which are substantially
influenced by [the] opportunity to hear and see the witnesses and
to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State
v. Johnson, 42 N.J. 146, 161 (1964)). We owe no deference,
however, to the trial court's legal conclusions or interpretation
of the legal consequences that flow from established facts. Our
review in that regard is de novo. State v. Watts, 223 N.J. 503,
516 (2015); State v. Vargas, 213 N.J. 301, 327 (2013).
Applying this standard of review, we conclude that
defendant's arguments relating to the denial of his suppression
motion are without merit. We affirm substantially for the reasons
expressed by the trial court in its comprehensive oral decision.
We add the following comments.
Defendant contends that because Macauley was able to
determine ownership of the vehicle by running the plates, there
was no justification for the officer to search the vehicle's glove
compartment. We disagree.
"[A] police officer may make 'ordinary inquiries incident to
[a traffic] stop . . . such as 'checking the driver's license,'
verifying whether the driver has any outstanding warrants, 'and
inspecting the automobile's registration and proof of insurance.'"
8 A-3994-14T3
State v. Dunbar, ____ N.J. ____,____ (2017) (slip op. at 22-23)
(quoting Rodriguez v. United States, ____ U.S. ____,____, 135 S.
Ct. 1609, 1615, 191 L. Ed. 2d 492, 499 (2015)). The inquiry allows
an officer to confirm, among other things, a driver's compliance
with N.J.S.A. 39:3-29, which requires the operator of a vehicle
to have these documents in his possession and to produce them when
requested by a police officer performing his duties. See State
v. Perlstein, 206 N.J. Super. 246, 253 (App. Div. 1985).
During the traffic stop, "after the driver has been provided
the opportunity to produce his credentials and is either unable
or unwilling to do so," State v. Hamlett, 449 N.J. Super. 159, 173
(App. Div.) (quoting State v. Keaton, 222 N.J. 438, 450 (2015)),
certif. granted, ____ N.J. ____ (2017), a limited warrantless
search of a glove compartment for vehicle ownership documents may
be conducted by a police officer. Id. at 175 (quoting Gonzales,
supra, 227 N.J. at 101). Our Supreme Court has repeatedly
recognized with approval this type of limited search for documents.
See State v. Pena-Flores, 198 N.J. 6, 28 (2009), overruled on
other grounds, State v. Witt, 223 N.J. 409, 423-25, 427, 450 (2015)
(addressing the requirements for application of the "automobile
exception" to the warrant requirement as discussed in Pena-
Flores). Under this "driving documents" exception, "[i]f the
vehicle's operator is unable to produce proof of registration, the
9 A-3994-14T3
officer may search the car for evidence of ownership." Keaton,
supra, 222 N.J. at 448 (citing State v. Boykins, 50 N.J. 73, 77
(1967)); accord Pena-Flores, supra, 198 N.J. at 31; State v.
Patino, 83 N.J. 1, 12 (1980); State v. Gammons, 113 N.J. Super.
434, 437 (App. Div.), aff'd o.b., 59 N.J. 451 (1971), as long as
the driver first has an opportunity to produce them voluntarily.
See Hamlett, supra, 449 N.J. Super. at 170-74.
Contrary to defendant's argument, and consistent with a
driver's obligations under N.J.S.A. 39:3-29, the Supreme Court has
approved the application of this exception to the warrant
requirement even though police officers had the ability to use an
on-board mobile data terminal (MDT) to check on a vehicle's
registration and ownership.4 See e.g. Keaton, supra, 222 N.J. at
448-49. The availability of that information to a police officer
does not alter the driver's obligation "to be in the possession
of [the required documents] at all times[, which are] to be
exhibited upon request to a police officer so that he may
4
A MDT "consists of a screen and keypad that are linked to the
computerized databases of the New Jersey Division of Motor Vehicles
(DMV)" and allows an officer to obtain information about a
vehicle's registered owner from his police car. State v. Donis,
157 N.J. 44, 46 (1998). Before the use of MDT's, a police officer
obtained the same information over a radio from a police
dispatcher. Id. at 48. Under those circumstances the Court also
approved the application of the exception. See Pena-Flores, supra,
198 N.J. at 15-16.
10 A-3994-14T3
determine, among other things, the 'correctness of the
registration certificate, as it relates to the registration number
and number plates of the motor vehicle for which it was issued.'"
Gammons, supra, 113 N.J. Super. at 437 (quoting N.J.S.A. 39:3-29).
Here, defendant was offered the opportunity to voluntarily
present his registration and other ownership documents while still
in his vehicle and refused to do so, just as he initially refused
to present his license. The fact that the police officer had used
a MDT or called in the plates and received a verbal confirmation
of ownership did not relieve defendant from his obligation to turn
over those documents. When he refused to do so, or if he was
unable to do so, the officer was permitted to conduct the limited
search of the glove compartment. Hamlett, supra, 449 N.J. Super.
at 174. Once he discovered the handgun, it was "properly seized
under the plain view exception to the search warrant requirement
. . . [, which] allows seizures without a warrant so long as an
officer is 'lawfully . . . in the area where he observed and seized
the incriminating item or contraband, and it [is] immediately
apparent that the seized item is evidence of a crime." Ibid.
Defendant's motion to suppress was correctly denied.
II.
We turn next to defendant's contention regarding the trial
court's response to his claim that the prosecutor impermissibly
11 A-3994-14T3
exercised his preemptory challenges based on race. During jury
selection defendant challenged the prosecutor's use of peremptory
challenges against four African American jurors. The court
conducted an inquiry and determined that defendant established a
prima facie claim, as "there ha[d] been a disproportionate number
of challenges" to African Americans. The prosecutor then explained
the reasons for his challenges as to each of the identified
potential jurors. He cited to one juror's disclosure "that she
had a police friend, captain, who had a bad experience with other
colleagues" and to another who was a minister, who the prosecutor
believed would have "difficult[y] . . . judg[ing] someone else on
guilt." The prosecutor explained that he challenged another
potential juror who he understood enjoyed "playing [video] games
that involved guns."5 Finally, the prosecutor explained he
challenged the last of the subject jurors, who was an African
American architect, but the reasons for the use of that challenge
were unclear from the record and marked inaudible on the
transcript.6 Defendant took issue with the prosecutor's
explanations.
5
Defendant and the trial court pointed out the juror did not
mention video games involving guns, simply video games.
6
Although the record does not disclose an express statement of
the prosecutor's reasons for challenging the architect, the record
12 A-3994-14T3
The trial court found "a prima facie case . . . was made[;]"
however, it was "satisfied that the State has presented neutral
reasons for exercising the disputed challenges." Accordingly, it
concluded "there [wa]s no issue for [the court] to address."
Defendant argues on appeal that the trial court made its
determination "[w]ithout analyzing [his] arguments or the
prosecutor's race-neutral reasons" and that "[t]he court's failure
to conduct the required third step of the Gilmore analysis . . .
requires reversal of defendant's convictions." We disagree.
The burden is on a defendant to prove purposeful
discrimination based on the totality of the relevant facts.
Gilmore, supra, 103 N.J. at 534; Batson v. Kentucky, 476 U.S. 79,
93-94, 106 S. Ct. 1712, 1721, 90 L. Ed. 2d 69, 85-86 (1986). "The
opponent of the strike bears the burden of persuasion regarding
racial motivation, and a trial court finding regarding the
credibility of an attorney's explanation of the ground for a
peremptory challenge is entitled to great deference." State v.
Thompson, 224 N.J. 324, 344 (2016) (quoting Davis v. Ayala, ____
U.S. ____,____, 135 S. Ct. 2187, 2199, 192 L. Ed. 2d 323, 335
(2015)) (adopting federal standard of appellate review). We will
discloses the veniremember was undecided as to the issue of gun
control and expressed a view that the justice system may be biased
against certain ethnic groups.
13 A-3994-14T3
not disturb "a trial court's ruling on the issue of discriminatory
intent . . . unless it is clearly erroneous." Ibid. (quoting
Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1207-08,
170 L. Ed. 2d 175, 181 (2008)). "A trial court's findings should
be disturbed only if they are so clearly mistaken 'that the
interests of justice demand intervention and correction.'" Id.
at 345 (quoting Elders, supra, 192 N.J. at 243). "An appellate
court should not disturb the trial court's findings merely because
'it might have reached a different conclusion were it the trial
tribunal' or because 'the trial court decided all evidence or
inference conflicts in favor of one side' in a close case." Ibid.
(quoting Elders, supra, 192 N.J. at 243).
"This standard, we note, necessarily applies to the trial
court's assessment of the prosecutor's candor and sincerity in the
presentation of reasons for exercising peremptory challenges."
Ibid. We "extend substantial deference to a trial court's
determination . . . [because] only the trial judge is in a position
to make 'first-hand observations' of the demeanor of both the
attorney who exercises the peremptory challenge and the juror who
is excused." State v. Osorio, 402 N.J. Super. 93, 105 (App. Div.
2008) (quoting Snyder, supra, 552 U.S. at 477, 128 S. Ct. at 1208,
170 L. Ed. 2d at 181), aff'd. 199 N.J. 486 (2009).
14 A-3994-14T3
A prosecutor may not deprive a defendant of the right to
trial by an impartial jury by excluding jurors based on race. See
Thompson, supra, 224 N.J. at 340. When a prosecutor's selection
of jurors is discriminatory, not only is a particular defendant
harmed, but "the very integrity of the courts is jeopardized."
Miller-El v. Dretke, 545 U.S. 231, 237-38, 125 S. Ct. 2317, 2323-
24, 162 L. Ed. 2d 196, 212 (2005).
A claim of bias in jury selection is evaluated using a three-
step process:
Step one requires that, as a threshold matter,
the party contesting the exercise of a
peremptory challenge must make a prima facie
showing that the peremptory challenge was
exercised on the basis of race or ethnicity.
That burden is slight, as the challenger need
only tender sufficient proofs to raise an
inference of discrimination. If that burden
is met, step two is triggered, and the burden
then shifts to the party exercising the
peremptory challenge to prove a race- or
ethnicity-neutral basis supporting the
peremptory challenge. In gauging whether the
party exercising the peremptory challenge has
acted constitutionally, the trial court must
ascertain whether that party has presented a
reasoned, neutral basis for the challenge or
if the explanations tendered are pretext.
Once that analysis is completed, the third
step is triggered, requiring that the trial
court weigh the proofs adduced in step one
against those presented in step two and
determine whether, by a preponderance of the
evidence, the party contesting the exercise
of a peremptory challenge has proven that the
contested peremptory challenge was exercised
15 A-3994-14T3
on unconstitutionally impermissible grounds
of presumed group bias.
[Osorio, supra, 199 N.J. at 492-93.]
See also Thompson, supra, 224 N.J. at 341-44.
The trial court here conducted the required analysis. It
found defendant established a prima facie case, noting that four
of the State's peremptory challenges were used to exclude African
American jurors (step one), the prosecutor provided a reasoned,
neutral basis for excluding the African American jurors (step
two), basing his challenges on the veniremembers' responses to
questions that raised legitimate concerns for the prosecutor, see
Osorio, supra, 199 N.J. at 505 (stating that peremptory strikes
may be justified if reasonably relevant to case being tried), and
the judge considered the arguments of both sides and found no
constitutional violation (step three). While the trial court
failed to explicitly label its consideration of the parties'
arguments as "step three" of its analysis, its application of that
step can be inferred from its comments. See State v. Locurto, 157
N.J. 463, 472 (1999).
We discern no reason to disagree with the trial court's
determination in this case.7 "[T]he prosecutor's race-neutral
7
On appeal, relying upon State v. Fuller, 182 N.J. 174, 201-02
(2004) (stating no juror may be disqualified from jury service
16 A-3994-14T3
reasons for striking the jurors were found by the court to be
credible and were supported by the record." Thompson, supra, 224
N.J. at 350.
III.
Finally, we address defendant's argument concerning his
sentence. According to defendant, the court erred by imposing
consecutive sentences for his weapons possession offenses and his
certain person offenses. He contends that the court failed to set
forth a complete analysis of the Yarbough factors and made factual
errors in its findings. We find no merit to these contentions.
On April 25, 2014, the court sentenced defendant, placing its
reasons on the record in a thorough and comprehensive oral
decision. Addressing its reasons for imposing consecutive
sentences, the court stated:
First of all, as noted by Yarbough,[8] there
can be no free crimes in a system for which
the punishment shall fit the crime . . . and
based exclusively on his or her religious beliefs or the lack
thereof), defendant raises an argument for the first time that the
minister was improperly challenged based only on his religious
beliefs. We find no merit to this argument as its premise is
belied by the record of the juror's responses to questions about
his occupation – he stated he was an "ordained minister," "work[ed]
in the church," was "a police chaplain," and that his church had
"marched in Philadelphia" – as compared to any specific religious
beliefs.
8
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S.
1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
17 A-3994-14T3
their objectives were not prominently --
predominantly independent of each other, with
the exception of the charge of certain persons
not to possess weapons.
With respect to whether the crimes were
committed at different times or separate
places, the [c]ourt note[s] that the prior
conviction for which this charge, certain
persons, was based, occurred at separate times
and places from the current crimes. Also,
with respect to the fact of his gun related
offenses. Although those offenses did not
involve separate acts of violence or threats
of violence, or multiple victims, a sentencing
court may impose consecutive sentences even
though a majority of the Yarbough factors
support [a] concurrent sentence.
And I just wanted to put those on the record
for my reasons for making [c]ount [n]ine
consecutive to all counts except [c]ount
[t]en. And [c]ount [t]en will be served
concurrent to [c]ount [n]ine in that, for the
reasons that I've stated as well as the fact
that it is based on similar or same crimes
which qualify the defendant for certain
persons.
Our review of sentencing determinations is limited and
governed by the "clear abuse of discretion" standard. State v.
Roth, 95 N.J. 334, 363-65 (1984); see also State v. Bolvito, 217
N.J. 221, 228 (2014). In our review, we will "not substitute
[our] judgment for the judgment of the sentencing court[,]" State
v. Lawless, 214 N.J. 594, 606 (2013), nor will we disturb a
sentence that is not manifestly excessive or unduly punitive, does
not constitute an abuse of discretion, and does not shock the
18 A-3994-14T3
judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16,
220 (1989). We are "bound to affirm a sentence, even if [we]
would have arrived at a different result, as long as the trial
court properly identifies and balances aggravating and mitigating
factors that are supported by competent credible evidence in the
record." Id. at 215. We may only disturb a sentence if: "(1) the
sentencing guidelines were violated; (2) the aggravating and
mitigating factors . . . 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.'" State v. Fuentes, 217
N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 364-65).
Applying these standards, we discern no abuse of the court's
discretion in sentencing defendant to consecutive sentences,
essentially for the reasons expressed by the trial court. We add
only the following comments.
N.J.S.A. 2C:44-5(a) provides that "multiple sentences shall
run concurrently or consecutively as the court determines at the
time of sentence." Although there are no statutorily set rules
for imposing consecutive sentences, the Court in Yarbough set
forth a number of guidelines concerning same.9 A sentencing court
9
The factors that must be considered are as follows:
19 A-3994-14T3
(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;
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense; [and]
(6) there should be an overall outer limit on
the cumulation of consecutive sentences for
20 A-3994-14T3
(continued)
applies these factors qualitatively, not quantitatively. State
v. Carey, 168 N.J. 413, 427 (2001). Thus, a court may impose
consecutive sentences "even though a majority of the Yarbough
factors support concurrent sentences." Id. at 427-28; see e.g.,
State v. Molina, 168 N.J. 436, 442 (2001) (finding consecutive
sentences were warranted despite the presence of only one Yarbough
factor). Concurrent sentences are not mandated even where the
crimes are connected by a "unity of specific purpose, . . . were
somewhat interdependent of one another, and were committed within
a short period of time of one another." State v. Swint, 328 N.J.
Super. 236, 264 (App. Div.), certif. denied, 165 N.J. 492 (2000).
Once it considers the Yarbough factors, the court is obligated
to expressly state the reasons for imposing consecutive sentences
or risk remand for resentencing. State v. Miller, 108 N.J. 112,
122 (1987). "[T]he reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the sentencing
decision." State v. Miller, 205 N.J. 109, 129 (2011) (quoting
Yarbough, supra, 100 N.J. at 643.)
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.
[Yarbough, supra, 100 N.J. at 643-44 (footnote
omitted).]
21 A-3994-14T3
Here, the judge cogently applied the Yarbough criteria in
assessing the appropriateness of imposing consecutive sentences.
The certain persons not to have weapons offense was clearly a
distinct offense from the other weapons charges, and it had
distinct elements. Imposing a concurrent sentence on defendant
for this offense would have given him a "free crime" and would
have frustrated the legislature's intent to deter persons with
criminal histories from possessing weapons. Moreover, the
aggregate sentence does not shock the judicial conscience. See
Roth, supra, 95 N.J. at 365.
Affirmed.
22 A-3994-14T3