STATE OF NEW JERSEY VS. CARLOS ROJASÂ (12-09-1046, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-4358-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS ROJAS, a/k/a CARLOS
BENITEZ, a/k/a CARLOS
ROJAS-BENITEZ,
Defendant-Appellant.
________________________________________________________________
Submitted September 20, 2017 – Decided November 20, 2017
Before Judges Simonelli and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
12-09-1046.
Walter Murawinski, attorney for appellant.
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor, on the
brief).
PER CURIAM
A jury convicted defendant Carlos Rojas of committing first-
degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and other
crimes arising from his role in the killing of a friend and the
disposal of the victim's remains. On appeal, defendant challenges
his conviction and sentence. He argues that the trial court failed
to properly respond to questions asked by the jury during
deliberations. He also contends his conviction was the result of
ineffective assistance of trial counsel and the prosecutor's
improper comments to the jury during summations. In addition,
defendant challenges his sentence by arguing that the aggregate
thirty-year prison term imposed by the trial court was excessive
in light of his minimal criminal history. We reject these
contentions and affirm.
The facts leading to defendant's arrest and conviction as
developed at trial are summarized as follows. On August 4, 2011,
the Lincoln Park Police Department discovered an abandoned vehicle
at the bottom of an embankment. Upon inspection, police found
that the car was unlocked, in park, and the interior of the vehicle
had been doused in motor oil. They also discovered a business
card for a car wash. Later, detectives also noted that the car
stereo was missing.
When the police opened the vehicle's trunk, they discovered
the body of Esteban Hernandez. The county medical examiner later
determined Hernandez died of blunt force trauma to the head,
2 A-4358-14T2
consistent with wounds that would result from being beaten by a
hammer and that the manner of death was homicide.
Using a receipt from a supermarket, also found in the car
near a bag of peaches, detectives were able to obtain security
footage from the supermarket showing the victim and an unidentified
male purchasing the peaches and beer on the afternoon of August
3, 2011. Police detectives were able to determine Hernandez's
cell phone number and discovered it was registered under
defendant's name. They obtained a photograph of defendant that
appeared to match the unidentified male in the supermarket
surveillance video.
Detectives went to defendant's residence and questioned him
about Hernandez. Ultimately, they transported defendant to the
police station for further questioning. At the station, defendant
told conflicting stories to detectives, which led to them charging
defendant with hindering his own apprehension. Defendant was
placed under arrest and transported to the county jail.
The police continued their investigation and conducted a
search of defendant's residence and automobile. In defendant's
bedroom, detectives discovered bloodstained clothing that matched
the clothes worn by defendant in the surveillance video. A
detective, who was qualified as an expert in blood stain pattern
analysis, examined the bloody shirt and concluded that the
3 A-4358-14T2
"[s]tains . . . were consistent with impact spatter," "cast-off
spatter," "expirated blood," and "transfer pattern blood." The
search of defendant's car yielded, among other items, a GPS device,
which police used to determine that the car was in Lincoln Park,
near the location where Hernandez's body was found, at 8:50 p.m.
on August 3, 2011.
In addition to the evidence obtained through their
investigation, detectives received information about defendant's
role in Hernandez's murder from a third party, Joseph Masino, an
inmate at the county jail, who shared a cell with defendant. He
met with detectives after claiming he had information regarding
defendant's involvement in Hernandez's death. Masino stated
defendant told him that he beat the victim to death with a hammer
after an argument over $4000 "got out of hand," and afterward he
and another individual transported the body to Lincoln Park.
The information provided by Masino led the detectives to a
garage located in Fairview owned by Oscar Aleman, a mechanic who
was teaching defendant how to repair cars. Oscar wore a green t-
shirt with an emblem that matched the one on the business card
found in the victim's vehicle. The police spoke to Oscar1 and
Oscar's then eleven-year-old son, John Aleman.
1
First names are used to avoid confusion.
4 A-4358-14T2
John stated that on August 3, 2011, he and his father were
returning home when they observed two men, including defendant,
who he knew as his father's friend, stealing Oscar's stereo system
from the garage and placing it in a vehicle. When they entered
the garage, John saw defendant standing over Hernandez and holding
a hammer. He did not see defendant strike the victim, nor did he
recall whether he saw blood. Defendant told John and his father
that if they "ever said anything, he would . . . come after
[them]." John recalled seeing the hammer before; however, he did
not know what happened to it after that day. Oscar told John not
to tell anyone what he saw.
According to defendant,2 it was Oscar who killed Hernandez.
He stated he was with Hernandez when the two of them went to
Oscar's garage. While there, Hernandez started to steal items
from the garage before Oscar arrived. When Oscar appeared, he and
Hernandez began to fight, during which Oscar struck Hernandez in
the head with a hammer numerous times. Fearful for his own life,
defendant helped Oscar move the body to where it was discovered
in Lincoln Park. According to defendant, he could not have been
2
Defendant testified at trial. On cross-examination, he
conceded that he had given three different versions of the facts
relating to the murder. In fact, defendant acknowledged that his
August 5, 2011 statement to police contained up to twenty-five
lies.
5 A-4358-14T2
the killer as he is left handed and according to expert testimony,
the person who killed Hernandez had to be right handed, and Oscar
was right-handed.
A Morris County Grand Jury returned an indictment charging
defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2)
("count one"); first-degree felony-murder, N.J.S.A. 2C:11-3(a)(3)
("count two"); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1)-
(2) ("count three"); second-degree desecrating human remains,
N.J.S.A. 2C:22-1(a)(1) ("count four"); third-degree possession of
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) ("count
five"); fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-4(d) ("count six"); third-degree theft from a person,
N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:20-2(b)(2)(d) ("count seven");
fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) and
N.J.S.A. 2C:20-2(b)(3) ("count eight"); and third-degree hindering
one's own apprehension, N.J.S.A. 2C:29-3(b)(4) ("count nine").
At the conclusion of defendant's trial, the jury acquitted
defendant of the first two counts, but convicted him of the lesser-
included offense of first-degree aggravated manslaughter and the
remaining counts as charged. The trial court sentenced defendant
to an aggregate term of thirty years. This appeal followed.
Defendant presents the following arguments for our
consideration:
6 A-4358-14T2
POINT I
THE TRIAL COURT ERRED IN FAILING TO
QUESTION JUROR #2 INDIVIDUALLY AND
IN FAILING TO RECHARGE THE JURY ON
REASONABLE DOUBT. (Raised Below).
POINT II
APPELLANT WAS DEPRIVED OF A FAIR
TRIAL DUE TO THE INEFFECTIVE
ASSISTANCE OF COUNSEL. (Not Raised
Below).
POINT III
THE IMPROPER SUMMATION OF THE
PROSECUTOR DEPRIVED APPELLANT OF A
FAIR TRIAL. (Not Raised Below).
POINT IV
GIVEN APPELLANT'S COMPLETE LACK OF
A CRIMINAL RECORD, THE THIRTY-YEAR
SENTENCE IMPOSED WAS EXCESSIVE.[3]
(Raised Below).
We begin our review by addressing defendant's contentions
concerning the trial court's response to issues raised by the
jury. During deliberations on Thursday, October 30, 2014, the
3
Defendant raised an additional argument in his reply brief
claiming that "the trial court erred by permitting the State to
elicit net opinions that" should not have been admitted. Because
this argument was not raised in his merits brief, we do not
consider it in support of his appeal. See Drinker Biddle & Reath
LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496
n.5 (App. Div. 2011) (citations omitted) (providing that claims
not addressed in the appellant's merits brief were deemed
abandoned, and could not properly be raised in a reply brief).
7 A-4358-14T2
jury sent out two notes.4 The first note asked the court to adjourn
at 4:30 p.m. that day and to resume the trial on the following
Monday. The second note, written by juror number two, stated, "I
[cannot] continue to serve on this [j]ury. We are making no
headway on this case. We have a [j]uror who almost needs certainty
before he can make a guilty verdict. I am being asked to be
excused from this [j]ury."
In response to the first note, the parties told the court
they preferred that the jurors continue their deliberations, even
if it meant holding the jury beyond 4:30 p.m. that day and
continuing the next day, rather than adjourning until Monday. The
court decided to give the jurors the option of staying late that
day or continuing the following day.
As to the second note, the prosecutor suggested that the jury
should be "recharg[ed] on reasonable doubt[5] and the burden of
proof." Defense counsel stated he was concerned juror two was
being pressured. He asked the court to question the juror
4
Defendant's brief makes reference to a third note that is not
the subject of his appeal. He states that the note advised the
court that the jury had agreed on seven charges but could not
reach a decision as to the balance and requested "advice" from the
court. A copy of the note was not included in the appendix.
5
During the court's original charge to the jury, it instructed
the jurors on the concept of reasonable doubt, consistent with the
Model Jury Charge (Criminal), "Reasonable Doubt" (1997).
8 A-4358-14T2
individually. The court refused to interview juror two because
it believed "there[ were] inherent problems with bringing out one
juror . . . and isolating him with the other jurors waiting."
Accordingly, the court brought out all of the jurors, and addressed
both notes by stating the following:
I am not going to excuse any juror from this
jury at this time. You all took an oath to
continue to deliberat[e] -- through
deliberations under the instructions I've
given you and . . . there's no doubt in my
mind that you've listened very carefully. And
that you've also indicated that you're at a
point where you're in agreement on certain
issues and you're still in deliberation on
other issues. . . . I am going to require
that you continue those . . . deliberations
with all [twelve] deliberating jurors.
When you reach the point where you feel
in good conscious you have considered that
further and that you cannot come to agreement,
then you can hand out a note and either tell
me that consistent with the charges that I've
given you that you've reached a complete jury
verdict or . . . you're still in agreement on
certain issues but [are] not able to agree on
others, and then I would bring you out and
give you some further instructions.
Now, because of these developments and
because . . . I've reflected on the time, and
this is my decision, I recognize that some of
you have been making commitments for Fridays,
but I am concerned that if I release you until
Monday this would only create greater
problems. So I am going to direct that you
continue your deliberations, and I'm going to
give you the choice, you can continue them
this evening or if you feel it more
appropriate you'd have to come back tomorrow.
9 A-4358-14T2
But I'm not going to release you until Monday
at this time.
. . . .
[I]t is your duty, as jurors, to consult with
one another and to deliberate with a view to
reaching an agreement, if you can do so
without violence to individual judgment. Each
of you must decide the case for yourself, but
do so only after an impartial consideration
of the evidence with your fellow jurors. In
the course of your deliberations, do not
hesitate to re-examine your own views and
change your opinion if convinced it is
erroneous but do not surrender your honest
conviction as to weight or the effect of
evidence solely because of the opinion of your
fellow jurors, or for the mere purpose
of . . . returning a verdict. You are not
partisans. You are judges, judges of the
facts.
. . . .
And I don't want any jurors singling out any
other juror in any way.
After returning to the jury room, the jury sent out a note stating
it would continue deliberating into the evening. The jury rendered
its verdict approximately one-half hour later.
Defendant argues on appeal that the court interfered with his
right to a fair trial by not re-instructing the jury as to
reasonable doubt, and failing to question juror two as to the
nature of the conflict with the other jurors. In addition, he
contends that the court's failure to agree to the jury's preferred
schedule "coercive[ly]" gave them the option to either deliberate
10 A-4358-14T2
further Thursday evening or reconvene for deliberations on Friday.
We disagree.
"We traditionally . . . accord[] trial courts deference in
exercising control over matters pertaining to the jury." State
v. R.D., 169 N.J. 551, 559-60 (2001). Whether the court failed
to properly exercise its discretion in handling issues with the
jury, such as removing and substituting a deliberating juror,
State v. Musa, 222 N.J. 554, 564-65 (2015), depends upon whether
the court's actions impaired the defendant's right "to be tried
before an impartial jury[, which] is one of the most basic
guarantees of a fair trial." See State v. Brown, 442 N.J. Super.
154, 179 (App. Div. 2015) (quoting State v. Loftin, 191 N.J. 172,
187 (2007)).
Applying this deferential standard, we find no abuse of the
court's discretion in deciding to disagree with the jury's
requested schedule for deliberations or its decision to not
interview juror two. As to the schedule, defendant urged the
court to continue deliberations despite the jurors' request. We
find nothing coercive about allowing the jury to continue
deliberations, especially when the court gave the jury the option
of adjourning for the day and continuing the next day. But cf.
State v. Figueroa, 190 N.J. 219, 242 (2007) (finding the trial
court's instructions to the jury were "inappropriately coercive");
11 A-4358-14T2
In re Stern, 11 N.J. 584, 590 (1953) (finding "[u]ndue stress was
laid upon the economic element and the importance of a verdict;
agreement to avoid the expense of a retrial of the cause was the
dominant consideration, and the result betokens its coercive
tendency and effect."). We conclude there was no impairment of
defendant's right to a fair trial on these grounds.
We reach the same conclusion as to the court's rejection of
defendant's request for the court to interview juror two about his
desire to not participate in further deliberations. The court's
decision was consistent with the Supreme Court's limitations on a
court's ability to interfere with deliberations. Those
limitations recognize that jury deliberations often become heated,
and jurors may place all sorts of pressures on each other in the
course of deliberations. See State v. Young, 181 N.J. Super. 463,
468 (App. Div. 1981), certif. denied, 91 N.J. 222 (1982). It is
not the court's role to inquire into deliberations, absent evidence
of impropriety, such as "[a] physical altercation between two or
more deliberating jurors[, which] constitutes an irreparable
breakdown in the civility and decorum expected to dominate the
deliberative process." State v. Dorsainvil, 435 N.J. Super. 449,
482 (App. Div. 2014).
Removal of a juror during deliberations is allowed only as a
last resort "[b]ecause juror substitution poses a clear potential
12 A-4358-14T2
for prejudicing the integrity of the jury's deliberative process."
State v. Hightower, 146 N.J. 239, 254 (1996); State v. Valenzuela,
136 N.J. 458, 468-69 (1994). For that reason, Rule 1:8-2(d)(1)
permits the removal and substitution of jurors in criminal trials
after deliberations have begun "only in specifically defined
circumstances." State v. Jenkins, 182 N.J. 112, 123-24 (2004).
Generally, a deliberating juror can be excused only for reasons
personal to the individual juror, those that "do[] not pose a
threat to the integrity or independence of the deliberative
process." Id. at 124; See also State v. Ross, 218 N.J. 130, 147
(2014).
Here, juror two's note did not set forth a valid basis for
the court to question or remove the juror. The note did not claim
there was "an inherently coercive and chaotic environment[, rising
to the level of] an affront to any notion of civilized justice,"
Dorsainvil, supra, 435 N.J. at 482, rather the juror only noted
there was a disagreement regarding the deliberative process. The
request for removal was also not supported by a reason wholly
personal to juror two, as such there was no basis to remove him.
Turning to defendant's argument that the court should have
recharged on reasonable doubt, juror two's statement that "[w]e
have a juror who almost needs certainty," demonstrated that the
other juror understood the difference between proof beyond a
13 A-4358-14T2
reasonable doubt as compared to proof by a preponderance of the
evidence, which was consistent with the court's original charge.
Moreover, the jury did not indicate any issue regarding its
understanding of any charge. The single juror's complaint about
a dispute in deliberations was not a substitute for a jury's
request for more information about a charge.
In any event, after the court's instructions and the jurors'
decision to continue their deliberations into the evening, they
reached a verdict with no evidence of further conflict. Defendant
has not demonstrated the continuation of deliberations, any
alleged conflict between the two jurors or the failure to charge
reasonable doubt caused any prejudice. Defendant was acquitted
of the most serious charge against him and convicted of the lesser-
included offense, which demonstrated the jury's ability to
understand the law as charged.
We turn next to defendant's contention that comments made by
the prosecutor during summations were improper. Again, we
disagree.
Before the prosecutor presented his summation, defense
counsel attacked Masino's credibility during summations by calling
him a "sociopath." Over the State's objection, the trial court
permitted defense counsel to continue with the proviso that "he
make it clear [to the jury] that the[y] are [defense counsel's]
14 A-4358-14T2
terms," or his "contention." Defense counsel resumed his summation
regarding Masino, stating: "As I was saying, he is a sociopath.
Do you know what a sociopath is? It is my opinion on the evidence,
that's an antisocial personality. He's pathological. He's a
pathological liar."
During the prosecutor's summation, he stated:
And that brings us to [defendant].
Again, although [defendant's] closing was two
hours long, we didn't hear much about what
[defendant] said from this witness stand. We
heard him referred to as a boy. We heard all
of that information.
If there is one pathological liar in this
whole case, it's [defendant].
The prosecutor continued by arguing how the evidence supported
this characterization of defendant, referring to the fact
defendant admitted that he told police officers twenty-five lies
during their questioning of him. The prosecutor also stated that
Oscar was not familiar with the victim.
Citing State v. Frost, 158 N.J. 76, 88-89 (1999), defendant
asserts that the prosecutor's reference to defendant as a
pathological liar was improper. He similarly contends that a
reference to Oscar not knowing Hernandez was "prohibited" and
unsupported by the record. Defendant argues these comments
prejudiced him by unfairly attacking his credibility and
"warrant[] a new trial." We find no merit to his arguments.
15 A-4358-14T2
At the outset, we observe that defendant did not object to
the prosecutor's summation. When a defendant fails to make a
contemporaneous objection to an argument presented during
summation, it is "fair to infer from the failure to object below
that in the context of the trial the error was actually of no
moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quoting Nelson,
supra, 173 N.J. at 471); see also Frost, supra, 158 N.J. at 83(holding generally, "if no objection was made [at trial,] the
remarks will not be deemed prejudicial)."
When there is no objection made at trial, we review the record
for plain error. Plain error is "[a]ny error or omission [that]
is of such a nature as to have been clearly capable of producing
an unjust result." R. 2:10-2.
Applying that standard, we conclude that there was no error
made by the trial court in permitting the prosecutor to comment
on defendant's credibility. When considering an argument about a
prosecutor's comments during summation, we must acknowledge that
"[p]rosecutors are expected to make a vigorous and forceful closing
argument to the jury, and are afforded considerable leeway in that
endeavor." Ingram, supra, 196 N.J. at 43 (quoting State v.
Jenewicz, 193 N.J. 440, 471 (2008)). "[S]o long as their comments
are reasonably related to the scope of the evidence presented" at
trial, courts afford prosecutors "considerable leeway" in the
16 A-4358-14T2
vigor and force of the language used in closing arguments. State
v. Timmendequas, 161 N.J. 515, 587 (1999) (citing State v. Harris,
141 N.J. 525, 559 (1995)). "To justify reversal, the prosecutor's
conduct must have been 'clearly and unmistakably improper,' and
must have substantially prejudiced the defendant's fundamental
right to have a jury fairly evaluate the merits of his [or her]
defense." Id. at 575 (citations omitted). That said, "there is
a fine line that separates forceful from impermissible closing
argument. . . . [A] prosecutor must refrain from improper methods
that result in wrongful conviction, and is obligated to use
legitimate means to bring about a just conviction." Ingram, supra,196 N.J. at 43 (quoting Jenewicz, supra, 193 N.J. at 471).
A prosecutor may not "offer a personal opinion of defendant's
veracity"; however, the prosecutor may make comments "based on
reasonable inferences drawn from the evidence presented during the
trial." State v. Morton, 155 N.J. 383, 457-58 (1998) (finding no
error when a prosecutor called defendant's testimony a "self-
serving pack of lies" because the prosecutor's statements were
"based on reasonable inferences drawn from the evidence presented
during the trial" (emphasis added)); see also State v. Bauman, 298
N.J. Super. 176, 208 (App. Div.), certif. denied, 150 N.J. 25(1997) (finding "alleged improper remark[ was] clearly [a]
17 A-4358-14T2
remark[] on the credibility of defendant's testimony and [was]
therefore unobjectionable").
Here, the prosecutor's statements were made in response to
defense counsel's characterization of the State's witness as a
sociopath and pathological liar. More importantly, they were
based upon defendant's admission during cross examination that he
gave the police three different versions of events regarding the
murder and that his statement to police contained up to twenty-
five lies. Accordingly, the prosecutor's characterization was
well-grounded in the evidence and was not improper.6 The
prosecutor's statement that Oscar did not know the victim was also
not contrary to the evidence, and did not prejudice the defendant.
Defendant's remaining challenge to his conviction rests upon
his claim that he received ineffective assistance from trial
counsel. He asserts numerous issues with counsel's performance
that he claims led to his wrongful conviction. According to
defendant, the record of the trial is sufficient for us to rely
6
Defendant's reliance on Frost is misplaced. In Frost, the
prosecutor did not attack defendant's credibility based on
evidence in the trial record; rather, he attempted to bolster the
credibility of the police officers by suggesting they would not
lie due to the severe consequences that would follow if they were
caught. See Frost, supra, 158 N.J. at 85.
18 A-4358-14T2
upon in determining whether trial counsel's alleged errors
prejudiced defendant.
We disagree with defendant's assessment of the sufficiency
of the record before us. We adhere to our "general policy against
entertaining ineffective-assistance of counsel claims on direct
appeal because such claims involve allegations and evidence that
lie outside the trial record." State v. Castagna, 187 N.J. 293,
313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)).
Typically, a "defendant must develop a record at a hearing at
which counsel can explain the reasons for his conduct and inaction
and at which the trial judge can rule upon the claims including
the issue of prejudice." State v. Sparano, 249 N.J. Super. 411,
419 (App. Div. 1991) (citations omitted); see also State v.
McDonald, 211 N.J. 4, 30 (2012). Defendant can pursue his claims
in accordance with the Court's rules governing post-conviction
relief petitions. See R. 3:22-1 to -13.
Finally, we consider defendant's challenge to his sentence.
At sentencing, the court found that aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) ("risk that defendant will commit another"
crime), and nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter),
applied to defendant, as did mitigating factor seven, N.J.S.A.
2C:44-1(b)(7) (no prior criminal history). It concluded that "the
aggravating factors of three and nine substantially preponderate
19 A-4358-14T2
over . . . mitigating factor seven . . . [, giving] a fair amount
of weight on aggravating factor three, a substantial amount of
weight on aggravating factor nine, and . . . limited weight to
mitigating factor seven."
In imposing consecutive sentences, the court applied the
Yarbough factors. State v. Yarbough, 100 N.J. 627 (1985), cert.
denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
The court observed defendant agreed with the State that the
sentence for hindering his own apprehension should be consecutive
to the sentences for the other charges. Defendant argued, however,
that the sentences for aggravated manslaughter and desecrating
human remains should be concurrent. The court disagreed, stating:
The charge of aggravated manslaughter and
desecrating and disturbing human remains, and
hindering [his] own apprehension, look at and
consider the factor of those crimes and their
objects were predominantly independent of each
other, although clearly you can argue that
this was a particular episode. The aggravated
manslaughter was distinct from desecrating
human remains. No matter how you look at this,
this crime took place in a garage in Fairview,
New Jersey, but the body was then stuffed into
a trunk and taken out and left in Lincoln Park,
and left in a condition where it was pretty
clear from the evidence that there was an
intention to try to burn this car up. Motor
oil had been spread all over. There was a
discharged lighter found. Those are
sufficiently independent, and although they
occurred somewhat close in time, they are
still independent.
20 A-4358-14T2
The court concluded by merging appropriate counts and
imposing a twenty-year term on the aggravated manslaughter charge,
subject to the mandatory period of parole ineligibility under the
No Early Release Act, N.J.S.A. 2C:43-7.2; a concurrent fifteen-
year term on the kidnapping charge; a consecutive seven-year term
on the charge of disturbing human remains; a three-year term on
the theft from person charge, concurrent to the aggravated
manslaughter sentence; and a three-year term on the hindering
apprehension charge, connected to both the kidnapping and
disturbing human remains charges.
Defendant argues on appeal that the court erred in determining
the kidnapping, disturbing human remains and hindering
apprehension charges were "separate criminal episodes," and
therefore the court was not justified in imposing consecutive
sentences as to those counts. He specifically relies upon the
fact that "[o]nly minutes elapsed between the blows to the victim's
head that led to his death and the decision to stuff the corpse
into a trunk of a car and take it out to Lincoln Park for disposal."
Our review of sentencing determinations is limited and
governed by the "clear abuse of discretion" standard. State v.
Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial
court's sentence, even if we would have reached a different result,
"unless (1) the sentencing guidelines were violated; (2) the
21 A-4358-14T2
aggravating and mitigating factors found . . . were not based upon
competent and credible evidence in the record; or (3) 'the
application of the guidelines to the facts . . . 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); see also State v. O'Donnell, 117 N.J. 210, 215-
16 (1989). Although sentences are reviewed for abuse of
discretion, the first prong of the analysis presents a question
of law that is reviewed de novo. State v. Robinson, 217 N.J. 594,
603-04 (2014).
We conclude the court properly exercised its discretion in
sentencing defendant. The court considered and weighed the
sentencing factors, imposed consecutive sentences and explained
the reasons for its decision, including its qualitative
consideration of the Yarbough factors.7 See N.J.S.A. 2C:44-5(a);
7
The factors that must be considered are as follows:
(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:
22 A-4358-14T2
Yarbough, supra, 100 N.J. at 643-44; see also State v. Carey, 168
N.J. 413, 427-28 (2001). Contrary to defendant's argument,
concurrent sentences are not mandated even where the crimes were
connected by a 'unity of specific purpose', . . . were somewhat
(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
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(footnotes omitted).]
23 A-4358-14T2
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.) (emphasis added), certif. denied, 165 N.J.
492 (2000).
Under these circumstances, we discern no reason to disturb
the sentences imposed. They were appropriately explained and do
not "shock the judicial conscience." State v. Case, 220 N.J. 49,
65 (2014) (quoting Roth, supra, 95 N.J. at 365).
Affirmed.
24 A-4358-14T2