STATE OF NEW JERSEY VS. BRIDGETTE N. ARCHUT (13-11-3428, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5737-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIDGETTE N. ARCHUT,
Defendant-Appellant.
________________________________
Submitted March 29, 2017 – Decided May 23, 2017
Before Judges Accurso and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
13-11-3428.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Linda A. Shashoua,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant was charged in a two-count indictment with fourth-
degree bias intimidation, N.J.S.A. 2C:16-1a, based on committing
the petty disorderly persons offense of harassment, N.J.S.A.
2C:33-4 (Count One), and fourth-degree bias intimidation, N.J.S.A.
2C:16-1a, based on committing the disorderly persons offense of
simple assault, N.J.S.A. 2C:12-1a (Count Two). Defendant's motion
to dismiss the indictment was denied. Her application for
admission to the Pretrial Intervention (PTI) program was denied,
and her appeal of that decision to the Law Division was also
denied.
Defendant went to trial and the jury found her guilty on
Count One of harassment, but not guilty of bias intimidation. On
Count Two, the jury found her guilty of simple assault and bias
intimidation. Defendant's post-trial motion for a judgment of
acquittal notwithstanding the verdict or, alternatively, a new
trial, was denied.
The court sentenced defendant on Count One to a one-year
probationary term. On Count Two, defendant was sentenced for
simple assault to probation for one year and for bias intimidation
to two years' probation, concurrent to each other but consecutive
to the sentence imposed on Count One. The court also imposed all
mandatory penalties as well as an order for restitution to
compensate the victim for expenses incurred for counseling.
On appeal, defendant presents the following arguments:
2 A-5737-14T3
POINT I
THE PRESENTATION TO THE GRAND JURY WAS
INSUFFICIENT TO SUPPORT THE INDICTMENT AGAINST
DEFENDANT AND SHOULD HAVE BEEN DISMISSED ON
DEFENDANT'S MOTION.
POINT II
IT WAS A PATENT AND GROSS ABUSE OF DISCRETION
FOR THE DEFENDANT TO BE DENIED ENTRY INTO THE
PRE-TRIAL INTERVENTION PROGRAM.
POINT III
THE COURT'S REFUSAL TO ASK THE VOIR DIRE
QUESTION REQUESTED BY THE DEFENSE WAS ERROR.
POINT IV
THE DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL AND NEW TRIAL SHOULD HAVE BEEN
GRANTED.
POINT V
BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT A VERDICT OF BIAS INTIMIDATION BEYOND
A REASONABLE DOUBT, THE GUILTY VERDICT MUST
BE VACATED.
POINT VI
THE THREE[-]YEAR TERM OF PROBATION FOR A
CONVICTION FOR THE PETTY DISORDERLY PERSONS
OFFENSE OF HARASSMENT AND ONE COUNT OF BIAS
INTIMIDATION BOTH OCCURING AT THE SAME TIME
AND PLACE WAS EXCESSIVE AND SHOULD BE MODIFIED
AND REDUCED. (Not raised below).
We reject Points I through V and affirm the convictions. We
agree with Point VI, and modify defendant's sentence.
3 A-5737-14T3
I.
These are the facts adduced at trial. On the evening of June
9, 2013, twelve-year-old C.B. and his seventeen-year-old brother
F.B., together with two girls who were F.B's friends, seventeen-
year-old K.E. and K.G. (whose age is not disclosed by the record)
were riding bicycles in a county park located in their hometown
of Haddon Heights Township. C.B. and F.B. are African-American;
the two girls accompanying them are Caucasian.
At that time, defendant, eighteen-year-old Bridgette N.
Archut, was a passenger in a car with four other young people.
All of the occupants are Caucasian. They were driving around the
same area as the bicyclists, and were looking for something to do.
Defendant was seated in the middle of the rear seat, with
passengers on both sides of her, and the two front seats were
occupied.
The car occupied by defendant came upon three of the
teenagers, namely the two brothers and one of the girls. At that
particular moment, the other girl had become slightly separated
from the group. As they rode by, the rear seat passenger to
defendant's left, A.P., a thirteen-year-old girl, yelled out a
racial slur, referring to a little N_ _ _ _ _. It was obvious to
the bicyclists that this slur was directed at twelve-year-old
C.B., who at that time was a sixth grader and was approximately
4 A-5737-14T3
four feet six inches in height. As C.B. described it in his
testimony, "[S]omeone screamed at me that I was a little
N_ _ _ _ _." He explained that the slur was obviously directed
at him: "I was the only one around and I was, I guess I was the
black person and I was the only little kid that was at the park
at the time." C.B. explained his immediate feeling when this
occurred: "I feel like they're trying to degrade me and I felt bad
about myself and I thought they tried to take my right away as
like being a person."
C.B.'s older brother, F.B., chased after the car on his
bicycle. He was unable to catch up with the car, and, because of
this action, he became separated from the other bicyclists in his
group. Meanwhile, inside the car, the rear-seat passengers were
all laughing about the incident. In her subsequent statement to
the police, which was introduced in evidence at trial, defendant
said that after the slur, "[e]veryone was laughing." At trial,
she denied that she was laughing.
The driver of the car testified at trial that all of the back
seat occupants, specifically including defendant, were urging her
to circle around and "go back, go back, go back." When asked
whether defendant was one of the people saying that, the witness
answered in the affirmative. The driver did circle around and
return to where the bicyclists had been, arriving at that location
5 A-5737-14T3
about four or five minutes after the slur had been made. By this
time, the girl who had been separated from the group had caught
up with the other girl and C.B. F.B. remained separated from the
group because of his unsuccessful pursuit of the car. Therefore,
the car came upon a group consisting of twelve-year-old C.B. and
the two older Caucasian girls.
K.E. testified that the car was proceeding "pretty fast," but
did not estimate an actual speed. As they rode by the group,
defendant threw a cup containing ice and water, secured by a lid,
out of the window. It hit the pavement two feet from C.B. and
"exploded." Some of the ice hit C.B.'s foot. C.B. explained his
reaction: "I was scared. I felt like I was being attacked." He
believed the projectile was directed at him because "it was close
to [him] and [the two girls] were ahead of me a little bit."
After this object was thrown, the car drove off to a parking
lot in the park, where it remained. C.B.'s older brother called
the police after rejoining his friends and C.B. The police located
the car and took defendant and others to the police station for
statements. Defendant initially denied that any racial slur was
made or that she or anyone else threw anything out of the window.
But she eventually admitted that the slur was made and that the
car made a second pass at the group, at which time she threw the
cup out of the window. She denied that she was throwing the cup
6 A-5737-14T3
at anyone, saying that her reason for throwing it out was that
"[w]e didn't need it."
II.
Defendant's arguments in Points I and III lack sufficient
merit to warrant extended discussion in a written opinion. R.
2:11-3(e)(2). We make these brief comments.
Defendant argues that her motion to dismiss the indictment
should have been granted because the evidence presented to the
grand jury was insufficient to support the charges in the
indictment. The State's evidentiary obligation in the indictment
process is to produce "'some evidence' as to each element of a
prima facie case." State v. Vasky, 218 N.J. Super. 487, 491 (App.
Div. 1987) (citation omitted). To this end, "every reasonable
inference is to be given to the State." State v. N.J. Trade Waste
Ass'n, 96 N.J. 8, 27 (l984). The judicial authority to dismiss
an indictment may not be exercised except on the "clearest and
plainest ground." State v. Weleck, 10 N.J. 355, 364 (1952)
(quoting State v. Davidson, 116 N.J.L. 325, 328 (Sup. Ct. 1936)).
A reviewing court will set aside a trial court's decision on
whether to dismiss an indictment only upon an abuse of discretion.
State v. Warmbrun, 277 N.J. Super. 51, 59-60 (App. Div. 1994),
certif. denied, 140 N.J. 277 (1995).
7 A-5737-14T3
We have reviewed the grand jury transcript. The State
produced as its only witness a detective from the Camden County
Prosecutor's Office who was involved in the investigation of this
matter. She described the events substantially as we have
described them above. We are satisfied that this presentation
complied with the required evidential standard, presenting at
least some evidence as to each element of each offense.
In Point III, defendant argues that the trial court erred in
failing to ask prospective jurors the following question, which
defendant requested: "Have you, or members of your family or
friends ever been the victim of a hate crime? (i.e. a crime based
on race, ethnicity, or sexuality)?" The judge declined the
request, concluding that other standard questions and instructions
to jurors, together with a description of the crime and reading
of the indictment, adequately covered the subject.
Trial courts are granted broad discretionary authority in
conducting jury voir dire. State v. Papasavvas, 163 N.J. 565, 595
(2000). A reviewing court "should focus only on determining
whether 'the overall scope and quality of the voir dire was
sufficiently thorough and probing to assure the selection of an
impartial jury.'" State v. Winder, 200 N.J. 231, 252 (2009)
(quoting State v. Biegenwald, 106 N.J. 13, 29 (1987)). We are
satisfied from our review of the record that the voir dire process
8 A-5737-14T3
was thorough and adequately addressed potential juror bias
relating to the nature of these bias intimidation charges. The
trial judge did not abuse his discretion in refusing to ask the
supplemental question proposed by the defense.
III.
We next consider defendant's argument in Point II that the
trial court erred in failing to find that the prosecutor committed
a gross and patent abuse of discretion in denying her PTI
application. Defendant argues that she should have been admitted
to PTI "[b]ased on the facts of this case and defendant's
unblemished prior history."
PTI determinations are guided by the seventeen factors listed
under N.J.S.A. 2C:43-12(e), and by the Guidelines for Operation
of Pretrial Intervention in New Jersey, Pressler & Verniero,
Current N.J. Court Rules, Guidelines to R. 3:28 (2017).
Defendant's application was reviewed by the Criminal Division
Manager's Office, after which Senior Probation Officer Erica K.
Wade issued a denial letter on February 6, 2014.
Denial was based on Guideline 3(i)(3), which provides that
if the crime was "deliberately committed with violence or threat
of violence against another person . . . the defendant's
application should generally be rejected." Wade went on to
describe the factual circumstances and concluded that "[t]his
9 A-5737-14T3
behavior by the defendant was clearly committed with deliberate
violence towards the victims and injurious consequences which
falls within Guideline 3(i)(3)." Wade further cited N.J.S.A.
2C:43-12(e)(1), (2), (7) and (14), which "require[] consideration
of the nature of the offense, needs and interests of the victim
and society and whether or not the crime is of such a nature that
the value of supervisory treatment would be outweighed by the
public need for prosecution." Finally, she relied on N.J.S.A.
2C:43-12(e)(10), requiring "consideration of whether or not the
crime is of an assaultive or violent nature[,] whether in the
criminal act itself or in the possible injurious consequences of
such behavior."
Wade concluded, upon consideration of the materials submitted
by defendant, including her age of nineteen at the time of
application, that "[d]espite these considerations and in view of
Ms. Archut's actions and behavior towards the victims, it is my
opinion that she is not a suitable risk or candidate for PTI. The
application is denied."
The prosecutor agreed with the Criminal Division Manager's
assessment and joined in the denial. Defendant appealed to the
Law Division. After hearing oral argument, the court found that
the prosecutor had not clearly and convincingly committed a gross
and patent abuse of discretion in denying the application.
10 A-5737-14T3
The court noted that the racial slur constituted
"reprehensible conduct," which, in the fact pattern presented, was
adopted by defendant when she threw the cup full of ice and water
at the victim as part of the continuing episode. The court said
"that's what the need for prosecution is versus supervisory
treatment, to send a strong message that this type of conduct will
not be tolerated in the future." The court was further satisfied
that defendant's conduct was indeed assaultive conduct and that
the presumption against PTI enrollment for such conduct was not
overcome. Recognizing the very high deference afforded to
prosecutors in PTI determinations, the judge denied defendant's
appeal.
Courts afford the decision of a prosecutor to deny PTI great
deference. State v. Leonardis, 73 N.J. 360, 381 (1977). "[T]he
level of deference which is required is so high that it has been
categorized as 'enhanced deference' or 'extra deference.'" State
v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (citing State
v. DeMarco, 107 N.J. 562, 566 (1987); State v. Dalglish, 86 N.J.
503, 513-14 n.1 (1981); State v. Hoffman, 224 N.J. Super. 149, 155
(App. Div. 1988)). Judicial review of a PTI rejection exists "to
check only the most egregious examples of injustice and
unfairness." DeMarco, supra, 107 N.J. at 566 (quoting Leonardis,
supra, 73 N.J. at 384).
11 A-5737-14T3
Before a reviewing court will suspend criminal proceedings
absent prosecutorial consent, "a defendant must 'clearly and
convincingly establish that the prosecutor's refusal . . . was
based on a patent and gross abuse of his discretion.'" Dalglish,
supra, 86 N.J. at 509, (quoting Leonardis, supra, 73 N.J. at 382).
Three categories of abuse of discretion in this context have been
recognized, and the standard for when these abuses rise to the
level of "patent and gross" enunciated:
Ordinarily, an abuse of discretion will be
manifest if defendant can show that a
prosecutorial veto (a) was not premised upon
a consideration of all relevant factors, (b)
was based upon a consideration of irrelevant
or inappropriate factors, or (c) amounted to
a clear error in judgment. In order for such
an abuse of discretion to rise to the level
of "patent and gross," it must further be
shown that the prosecutorial error complained
of will clearly subvert the goals underlying
Pretrial Intervention.
[State v. Bender, 80 N.J. 84, 93 (1979)
(citation omitted).]
A reviewing court may not substitute its discretion for that
of the prosecutor. State v. Waters, 439 N.J. Super. 215, 237
(App. Div. 2015). Our scope of review is "severely limited" in
light of the enhanced deference enjoyed by prosecutors. Id. at
225 (quoting State v. Negron, 178 N.J. 73, 82 (2003)).
The presumption to deny PTI created by Guideline 3(i) can
only be overcome if a defendant shows "compelling reasons"
12 A-5737-14T3
consisting of "something extraordinary or unusual, something
'idiosyncratic and in [the defendant's] background'". State v.
Lee, supra, 437 N.J. Super. at 563 (quoting State v. Nwobu, 139
N.J. 236, 252 (1995) (alteration in original)).
We are satisfied, as was the trial judge, that the prosecutor
considered all relevant factors, and did not consider any
irrelevant factors, nor did the prosecutor commit a clear error
in judgment in rejecting this application. The trial court applied
the correct legal standard and did not err in denying defendant's
appeal of her PTI rejection.
IV.
Defendant's arguments in Points IV and V are related, namely
that the trial court erred in denying her motion for judgment of
acquittal or a new trial, and that the evidence presented at trial
was insufficient to support a verdict of bias intimidation beyond
a reasonable doubt. We address the two points together.
Defendant begins by relying upon the apparent inconsistency
between the verdicts on Counts One and Two. Defendant argues that
"the failure of the jury to find an intent to intimidate based on
race in Count One [harassment] established there was insufficient
evidence to prove that required element on Count Two [simple
assault]." The State counters that the verdicts were not
necessarily inconsistent on the two counts, but even if they were,
13 A-5737-14T3
the bias intimidation conviction should not be disturbed because
it is supported by sufficient evidence from which the jury could
have reasonably found guilt beyond a reasonable doubt.
Defendant then argues that the trial evidence was not
sufficient to support a conviction of bias intimidation on Count
Two beyond a reasonable doubt. In her appellate brief, defendant
sets forth the statutory provisions identifying the elements of
bias intimidation and simple assault, as well as the statutory
definition of "bodily injury," and then makes the following
argument:
The defendant's action in throwing a cup of
ice water out of a car window did not cause
or attempt to cause any bodily injury or
serious bodily injury. No one was injured.
Ms. Archut, while admitting she threw the cup,
denied that it was aimed at anyone. Even if
it was, at best, some ice struck [C.B.]'s
shoe. Proof of simple assault is seriously
lacking.
The proofs were also deficient as to
defendant's intent. There was nothing
presented to support a purpose of Ms. Archut
to intimidate anyone. Ms. Archut made no
remarks or statements when [A.P.] yelled out
the "n" word or later when she threw the cup.
The record is devoid of any proofs of a purpose
to intimidate. The reaction or interpretation
of the victim of the act is insufficient to
establish such a purpose.
We address defendant's second argument first. In a post-
trial motion, defendant moved for a judgment of acquittal
14 A-5737-14T3
notwithstanding the verdict or for a new trial. The judge denied
the motion. When considering such a motion, what
the trial judge must determine is whether,
viewing the State's evidence in its entirety,
be that evidence direct or circumstantial, and
giving the State the benefit of all its
favorable testimony as well as all of the
favorable inferences which reasonably could be
drawn therefrom, a reasonable jury could find
guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-59 (1967).]
In reviewing the denial of such a motion, the appellate court
applies the same standard to determine if a defendant should have
been acquitted. State v. Moffa, 42 N.J. 258, 263 (1964).
Simple assault does not require the actual causing of an
injury. An attempt to cause a bodily injury is sufficient.
N.J.S.A. 2C:12-1a(1). The definition of "bodily injury" requires
nothing more than "physical pain." N.J.S.A. 2C:11-1a. The jury
could reasonably have found that defendant threw the cup at C.B.
She missed him by only two feet, the two girls were somewhat
separated from C.B., and the occupants of the car had returned to
the location where the bicyclists were as a follow-up to the
initial slur that had been directed at C.B. Evidence was
presented, including defendant's statement to the police within
an hour after the incident, that "everyone" was laughing after the
original slur. And, the driver's unrefuted testimony that all
15 A-5737-14T3
three of the backseat passengers, specifically including
defendant, urged her to go back for another pass at the bicyclists
was before the jury.
Putting all of this evidence together, the jury had a
reasonable basis to find that defendant purposely threw the cup
at C.B., intending that it hit him and cause him physical pain (or
some greater injury). It is also noteworthy that the cup was
described in the testimony as large, and it was thrown with the
lid on it. As a result, all of the weight of the ice and water
was held in until the cup made contact. As it was described in
the trial testimony, when the cup hit the pavement it "exploded,"
with the lid flying off and the contents being expelled. This
object, thrown in this manner from a rapidly moving car, was
certainly capable of causing physical pain (or a greater injury)
had it struck C.B. Therefore, the evidence was more than
sufficient to establish beyond a reasonable doubt the offense of
simple assault.
As to proof of intent to intimidate based on race, the bias
intimidation statute provides for the following permissive
inference: "Proof that the target of the underlying offense was
selected by the defendant, or by another acting in concert with
the defendant, because of race . . . shall give rise to a permissive
inference by the trier of fact that the defendant acted with a
16 A-5737-14T3
purpose to intimidate an individual . . . because of race."
N.J.S.A. 2C:16-1b. This provision was charged to the jury, and
the fact pattern established by the evidence could reasonably have
induced the jury to apply it.
When the slur was made by the person sitting next to defendant
in the car, the jury could have believed the testimony that all
of the backseat passengers, including defendant, were laughing
about it and urging the driver to circle around and pass by the
bicyclists again. Throwing the cup at the same victim who was
targeted by the racial slur as part of this continuum of events,
could reasonably lead the jury to infer that it was not only
defendant's purpose to injure C.B., but to intimidate him because
of his race.
We are satisfied that all necessary elements of the underlying
simple assault charge, as well as the bias intimidation charge
based upon simple assault, are supported by sufficient credible
evidence in the record to establish guilt beyond a reasonable
doubt.
This brings us to defendant's argument regarding inconsistent
verdicts. Assuming, for purposes of our analysis, that there was
an inconsistency between the verdicts on Counts One and Two, such
verdicts will be upheld so long as there is sufficient evidence
to support the convictions beyond a reasonable doubt. Dunn v.
17 A-5737-14T3
United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed.
356, 359 (1932); State v. Banko, 182 N.J. 44, 54-55 (2004). An
inconsistent verdict may be the product of jury nullification,
mistake, compromise, or lenity, and so, is not questioned. Banko,
supra, 182 N.J. at 54-55.
We have already explained why the bias intimidation
conviction on Count Two is supported by sufficient credible
evidence as to all elements, including a purpose to intimidate
based on race. We will not speculate on why the jury did not find
a purpose to intimidate based on race as to the harassment charge
in Count One. It could have been because of mistake, compromise,
giving defendant a break, nullifying the State's action in charging
her with that offense, or any other reason. Regardless of the
reason, it does not impair the viability of the bias intimidation
conviction based on simple assault in Count Two.
Accordingly, there is no basis to disturb the verdicts based
upon insufficiency of evidence or upon any perceived inconsistency
in the verdicts.
V.
Finally, we address defendant's sentencing argument.
Defendant does make some arguments regarding the applicability of
various aggravating and mitigating factors. However, the trial
court found that the mitigating factors preponderated over
18 A-5737-14T3
aggravating factors and that a non-custodial sentence was
appropriate. On appeal, defendant does not argue that either a
one-year non-custodial probationary sentence on Count One or the
two-year non-custodial probationary sentence on Count Two were
excessive. The argument is limited to the fact that the court
imposed the sentences consecutively. Defendant argues that under
the guidelines set forth in State v. Yarbough, 100 N.J. 627 (1985),
the sentences should have been run concurrent, resulting in an
aggregate non-custodial probationary sentence of two years. We
agree.
At the time of sentencing, the judge said very little by way
of Yarbough analysis:
One thing -- one other thing I should
place on the record. That the Court did
analyze Yarbough in making a determination to
run the harassment probationary term
consecutive to the convictions under count
two. I do find that the jury had spoken and
determined that these were separate offenses.
I believe that it's important that that be
acknowledged that these are separate
violations that were proven against this
Defendant.
. . . I understand the argument that
this was sort of all one ongoing event, but I
think it's important to acknowledge the
separate offenses as found by the jury and
that's the basis for which I determined that
the harassment should run consecutive to the
simple assault by bias intimidation
convictions.
19 A-5737-14T3
In essence, the judge merely stated that because the jury
found defendant guilty of two separate offenses, they should be
sentenced consecutively. That is an insufficient reason. The
question is not whether two or more offenses have been committed,
but whether the sentences on those offenses should run concurrently
or consecutively. In Yarbough, the Court listed four factors that
are relevant to this case:
(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.
Yarbough, supra, 100 N.J. at 644.
For conviction of bias intimidation based on simple assault,
the theory of the State's case required linkage between the slur
and the throwing of the cup four or five minutes later. In her
summation, the prosecutor argued accordingly:
The cup itself hurled at him right on the
heels, or after however many minutes after
this same group of people went by and the slur
was yelled at him, that's a continuing
communication to him. That's a continuing
derogation and attack upon him.
20 A-5737-14T3
Like if I give you the middle finger, you
know I'm being offensive. You know I'm being
rude. I'm saying something nonverbally.
And the connection between the slur being
yelled and the cup being hurled at him, that
makes it a continuing course of conduct. It's
harassment.
So, if I prove simple assault and I prove
harassment, I still got one more job. I've
got to prove that those things were done with
the purpose to intimidate, to frighten [C.B.]
for one reason only, because he was black.
That's what I have to prove and the way I'm
going to prove that is through the witnesses
and the words of the Defendant.
But there is a portion of the law that
says if you find, if you believe that [C.B.]
was targeted, he was the one they chose to
yell this slur at, he was the one she chose
to throw the cup of water at. If you find
that she did those things just because he was
black, then you can infer her purpose was to
intimidate him. That's why she picked a black
person.
In its appellate brief, the State presents a similar argument
to us:
The evidence showed a direct connection
between the racial slur and defendant's
actions, her culpable intent was clear from
the totality of the circumstances . . . and
finally, intent was supported by the favorable
inference permitted in the law to find that
if defendant targeted the victim because of
his race, her purpose was to intimidate him.
While we might in some circumstances remand to the trial
court to reconsider the consecutive/concurrent sentencing issue
21 A-5737-14T3
with a more thorough statement of reasons, we are convinced that
in the circumstances of this case, the Yarbough factors require
concurrent sentencing. The crimes and their objectives were not
predominantly independent of each other. Indeed, as argued by the
prosecutor, they were inextricably intertwined, with evidence from
one being necessary to convict on the other. Only one of the two
crimes involved an act of violence or threat of violence, namely,
simple assault. Therefore, there were not separate acts of
violence. The crimes were not committed at different times or
separate places. They were committed within four or five minutes
of each other at the very same place, all as part of an ongoing
continuum of activity by defendant and her cohorts. Finally, the
crimes involved only one victim.
Accordingly, we direct than an amended judgment of conviction
be entered to reflect that the sentences on Counts One and Two be
served concurrently.
Affirmed as modified and remanded.
22 A-5737-14T3