DOCKET NO. A-4936-09T1
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Debra G. Simms, Special Deputy Attorney General/ Deputy Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-08-2556.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Debra G. Simms, Special Deputy Attorney General/ Deputy Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Wallace Gaskins appeals his conviction for the lesser included offense of first-degree aggravated manslaughter (count one), contrary to N.J.S.A. 2C:11-4; first-degree attempted murder (count two), contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree unlawful possession of a weapon (count three), contrary to N.J.S.A. 2C:39-5(b); and second-degree unlawful possession of a weapon for an unlawful purpose (count four), contrary to N.J.S.A. 2C:39-4(a), as well as the resulting sentence. He also appeals the sentence imposed by the trial judge for an unrelated offense, charged in the same indictment, that was severed and never tried. We affirm the conviction, vacate the sentence for the count that was not tried, and remand for resentencing on counts one and two.
Gaskins was originally charged with first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2).
We discern the following facts and procedural history from the record on appeal.
During the evening of March 8, 2008, Mark Harper, Antoine Walker, and Anthony Stover attended a birthday celebration for their friend Antwan Johnson in Irvington. At the time, Johnson, Walker, and Stover were members of the Grape Street Crips, but Harper was not. As Harper, Walker, and Stover left the party and walked to their car, they came under gunfire. According to Harper, he heard a scream, turned around, saw two men running at them, and then heard and saw gunshots. Stover was shot and died at the scene.
Harper ran to the car and got inside, but was unable to get the key in the ignition. He saw an individual, whom he subsequently identified as Gaskins, standing a few feet away from the car window with a gun in his hand. The gun jammed while Gaskins was pointing it at Harper. While Gaskins attempted to un-jam the gun, Harper started the car and "mash[ed] on the gas pedal," at which time he was shot in the wrist. Harper drove to the home of his girlfriend, who drove him to the hospital.
Following their initial investigation, the police arrested Gaskins on March 12. He provided them with an audio-recorded statement, which was played at trial. Gaskins told police that he was in a bar in Irvington on the night of the shooting when someone known as "Jimmy" called him and told him he had a problem and needed a gun. Gaskins then met up with Jimmy and Alexander Owens.
Gaskins later identified Angel Kearny as Jimmy from a photo array. Police investigated Kearny, but he was not arrested.
Jimmy and Owens told Gaskins that they had been in an altercation with members of the Crips and Jimmy needed a gun. Although Gaskins told them he did not want to be involved because "it didn't have nothing to do with [his] set," he gave Jimmy a .45 caliber handgun. Owens already had a 9mm handgun.
In addition to providing the gun, Gaskins drove the men to an alleyway near the house "the [Crips] dudes" were visiting. According to Gaskins, Jimmy and Owens walked to the alleyway, while Gaskins waited in the car. Jimmy called him and told him to move the car to another street, which Gaskins did. He then "waited for them, turned the car off, waited for them, heard gunshots." He said it sounded as if "the whole clip" of the 9mm gun, and four or five shots from his .45 caliber gun, were fired. According to Gaskins, Jimmy and Owens then ran to the car. Jimmy told Gaskins that the .45 caliber gun was jammed. Gaskins "unjammed the gun, took the shell out, and gave him the gun back." He then drove them home.
Gaskins told the police that he met with Jimmy and Owens the following night. They told him that they had run after the victims, and that one of "these dudes was in the car." Owens shot the one outside of the car with his 9mm gun, while Jimmy shot the individual in the car through the car window with the .45 caliber gun. Jimmy told Gaskins that he had sold both guns that morning.
The police recovered four shell casings from the scene of the shooting. They determined that at least two weapons were used in the shooting: a 9mm and a .45 caliber gun. The bullet removed from Stover's head was determined to have come from a 9mm gun; the wound in Harper's hand was determined to have been caused by a .45 caliber gun.
Gaskins was indicted in August 2008, along with Owens and Shamir Brown. In addition to the original murder charge and the four other offenses for which he was convicted, the indictment charged Gaskins with a weapons offense that was alleged to have occurred on March 12, four days after the other offenses. That count charged Gaskins with second-degree possession of a .40 caliber handgun, contrary to N.J.S.A. 2C:39-5(b). The trial judge subsequently granted Gaskins' motion to sever that count so it could be tried separately. In fact, it was never tried.
The charges against Brown arising out of the March 8 shooting were subsequently dismissed after it was determined that he was not involved.
On September 15, 2009, Owens pled guilty to second-degree manslaughter, contrary to N.J.S.A. 2C:11-4(b). Gaskins sought to introduce portions of the factual basis given by Owens at the time of his guilty plea, but the trial judge excluded most of it. Gaskins opted not to introduce the portion that the judge held to be admissible.
Gaskins was tried before a jury over thirteen days during October, November, and December 2009. On December 2, the jury found Gaskins guilty of the lesser included offense of aggravated manslaughter under count one, and guilty on counts two through four.
Gaskins was sentenced on March 1, 2010. The judge merged count four into count two and sentenced Gaskins to an extended term of life, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6(c). He imposed five years of supervision upon release. On count one, the judge imposed a consecutive sentence of thirty years, with an eighty-five-percent period of parole ineligibility, which included the fifteen years required by the Graves Act, also with five years of supervision upon release. The judge imposed a concurrent sentence of ten years, with a five-year-period of parole ineligibility pursuant to the Graves Act, on count three. Finally, despite the fact that Gaskins was never tried on the severed count, the judge imposed a concurrent ten-year sentence with a five-year period of parole ineligibility under the Graves Act for that count. This appeal followed.
We note that neither the prosecutor nor defense counsel drew the fact that the severed count had not been tried to the judge's attention.
Gaskins raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO ADMIT CO-DEFENDANT ALEXANDER OWENS' STATEMENT INVOLVING HIS FACTUAL BASIS IN SUPPORT OF HIS GUILTY PLEA TO RECKLESS MANSLAUGHTER AS AN ADMISSION AGAINST INTEREST PURSUANT TO N.J.R.E. 803(C)(25)
POINT II: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
A. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM ON COUNT II ON THE BASIS THE DEFENDANT WAS A PERSISTENT OFFENDERPOINT III: THE DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON WITHOUT A PERMIT ARISING OUT OF COUNT VIII MUST BE REVERSED AND THE RESULTING SENTENCE IMPOSED THEREON VACATED IN THE ABSENCE OF DOCUMENTATION DEMONSTRATING THE DEFENDANT WAS EITHER FOUND GUILTY OR PLED GUILTY TO THIS CHARGE
B. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM POSSIBLE 30 YEAR BASE TERM ON COUNT I
C. THE TRIAL COURT ABUSED ITS DISCRETION BY REQUIRING THE TERMS IMPOSED ON COUNTS I AND II BE CONSECUTIVE RATHER THAN CONCURRENT IN NATURE
We start our consideration of this appeal with Gaskins' final point. The trial judge mistakenly imposed a sentence on the severed weapon count, which had not been tried. As the State has conceded, that portion of the sentence must be vacated.
Gaskins argues that the trial judge erred in refusing to admit the entirety of the factual basis Owens gave to support his guilty plea. He argues that the portions of the statement barred by the judge would have exonerated him.
At trial, the State presented two theories of criminal liability with respect to Gaskins. First, it argued that he was identified by Harper as the person who shot him. Second, it argued that, because Gaskins had admitted in his statement that he supplied one of the weapons used in the shooting and that he drove the others to and from the site of the shooting, he was an accomplice. N.J.S.A. 2C:2-6. During summation, the prosecutor conceded that Gaskins did not shoot Stover, but maintained that he had shot Harper.
Prior to the start of the trial, Gaskins sought to admit the factual basis for Owens' guilty plea, arguing that it inculpated Owens with respect to the killing of Stover and exculpated Gaskins with respect to both shootings. The State opposed the application.
During Owens' plea, the following exchange occurred between Owens and his attorney:
Q. Mr. Owens, I'm going to direct your attention to the date of March 9th, 2008. Do you recall that date?
A. Yes, sir.
Q. Were you in the Township of Irvington?
A. Yes, sir.
Q. You were in possession of a weapon on that day, is that correct?
A. Yes, sir.
Q. And you discharged that weapon?
A. Yes, sir.
Q. It -- you ultimately learned that it struck an individual and that individual expired from those wounds, is that correct?
A. Yes, sir.
Q. Did you discharge that weapon recklessly?
A. Yes, sir.
[DEFENSE COUNSEL]: Your Honor, I believe there's a satisfactory factual basis.
THE COURT: State?
[DEFENSE COUNSEL]: Judge, a few more questions.
Q. Mr. Owens, there were other individuals that were arrested with you that day, is that correct?
A. Yes, sir.
Q. In terms of their involvement, you have no knowledge one way or another as to what they did or what they were arrested for, what they may have participated in that day, is that correct?
A. Yes, sir. I don't have -- I don't know none of they [sic] involvement, what they did.
Q. One guy's name you learned to be Gaskins?
A. Yes, sir.
Q. And the other's guy's name you learned to be Brown?
A. Yes, sir.
[DEFENSE COUNSEL]: That's all I have, Judge.
The trial judge denied Gaskins' application in part. He was willing to permit use of the first portion of the statement, in which Owens acknowledged that he shot Stover. However, the judge was not willing to permit Gaskins to use the remainder of the statement, in which Owens claimed that he fired the gun recklessly and also denied any knowledge of the nature of Gaskins' involvement.
The judge explained his reasons as follows:
What we need is to determine whether this defendant's state of mind was a purposeful, or knowing, or reckless in circumstances manifesting . . . extreme indifference to human life or whether it was
clearly reckless. And that is not determined by somebody else's state of mind.
So, even if the declaration against interest were admissible, the reckless comment would not be admissible, because it would be misleading to the jury, it would be confusing, it would invite all sorts of presentation to explain it if it were admissible at all that would have the jury off on a tangent that . . . is totally divergent from the issues that are properly before the jury in this case.
The accomplice liability requires that a determination be made as to what the purpose of this defendant was in his activity, and . . . what his state of mind was. Whether it was the same as the person who committed the offense or not is . . . the physical act is not the issue. The issue is what his state of mind was at that time. And he can have a greater . . . criminal liability of a person . . . who committed the offense. He could have liability if the defendant were acquitted, or never charged, or the charges were dismissed.
So, his statement as to what his state of mind is, that is the co-defendant's statement as to what his state of mind was, in that kind of a setting . . . would not be admissible on the . . . the dual grounds I've mentioned.
With regard to Owens' statement that he was unaware of Gaskins' involvement, the Judge stated:
So he simply doesn't know what they did. He has no idea what they did, what their involvement was. He doesn't say they weren't involved, he says he doesn't know. And that's not part of a declaration against interest. He's not saying that they weren't
involved, he's expressing a lack of knowledge.
And it's not appropriate to call people before the jury for the nugatory purpose of having them say they don't know what's going on. And it's not appropriate to have somebody's out of court statement that he doesn't know what's going on admitted to the jury to foster the impression . . . that may be sought by one side or the other. . . . [H]e doesn't say anything, but coupling it with the other part enables the defense to use it. . . . I submit and I find misuse it to claim something that's been claimed here already. And I don't mean that in a designed scheming way.
I know that [defense counsel] . . . is zealously representing his client and I am not suggesting when I say misuse that I mean that it's designed in some crafty less than honorable way. It's just I understand the argument he wants to make and I don't think that it properly is supported by that presentation.
And it would be confusing to the jury, misleading, especially in light of the circumstance in which it was elicited, which is not truly spontaneous. It's designed by the attorneys for specific purposes. And it's a defendant following his attorney's lead to fit those designed purposes. It is inadmissible.
What is admissible, if the defense seeks to use it, and it's only admissible by the defense, not by the state, is the exchange and allocution between [defense counsel] and Mr. Owens, up to but excluding the reference to recklessness. Everything preceding that is admissible . . . if for some reason the defense determines it should be used. Everything beginning with the word, "recklessly," the question about that
and that follows it is excluded as inadmissible.
Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
Generally speaking, a statement made by a declarant which exposes the declarant to criminal liability and exculpates a defendant is admissible. See State v. Williams, 169 N.J. 349, 360-63 (2001); State v. White, 158 N.J. 230, 238-48 (1999); State v. Abrams, 140 N.J. Super. 232, 235-37 (App. Div. 1976), aff'd o.b., 72 N.J. 342 (1977). "[T]he question of the statement's admissibility primarily turns on the words of the statement itself rather than the extrinsic circumstances pertaining to the reliability of the statement . . . ." Williams, supra, 169 N.J. at 358. Consequently, "extrinsic circumstances of reliability are irrelevant to admissibility." Id. at 359.
In light of the applicable law, the portion of the statement in which Owens admitted shooting Stover was clearly a statement against interest. The last portion of Owens' statement, in which he asserted his lack of knowledge, one way or another, about Gaskins' role was not a statement against Owens' interest. It was not relevant to the guilty plea and did not subject him to any criminal liability. It was simply a gratuitous statement that he had no knowledge about what Gaskins did. Consequently, it was properly excluded.
The portion of the statement in which Owens agreed that he discharged the weapon "recklessly" was also against Owens' interest, in that it subjected him to conviction for manslaughter under N.J.S.A. 2C:11-4. However, he was not asked about the circumstances under which he acted recklessly because the plea bargain called for a plea to reckless manslaughter, N.J.S.A. 2C:11-4(b), a second-degree crime. Had Owens also admitted that he acted "under circumstances manifesting extreme indifference to human life," he would have been subject to conviction for aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), which is a crime of the first-degree.
Inasmuch as Gaskins was accused, in part, of acting as Owens' accomplice in the killing of Stover, Owens' state of mind at the time of the shooting was, broadly speaking, relevant. Had Gaskins been convicted of murder, there would be an argument that he was prejudiced by the exclusion of the statement concerning Owens' state of mind because of the requirement that one accused of murder act "purposely" or "knowingly." N.J.S.A. 2C:11-3(a)(1) and (2). Nevertheless, we note that
[a]n accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.Consequently, proof of Owens' state of mind would not have been decisive.
Even if relevant, however, that portion of the statement would still have been excludable pursuant to N.J.R.E. 403, which allows a trial judge to exclude relevant evidence "if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." Although the extrinsic circumstances surrounding the making of a statement against interest are not germane to its admissibility, they are germane to the jury's consideration of its probative value. Williams, supra, 169 N.J. at 358. For that reason, the judge would have had to allow the State to offer testimony about the reasons for allowing Owens to plead guilty to a much less serious offense.
Several factors lessened the probative value of Owens' statement about recklessness. First, he was answering his attorney's leading question. Second, he was admitting to conduct that constituted a second-degree crime, for which he received a ten-year sentence, in order to avoid conviction for the first-degree charge of murder. To that extent, the statement was in his interest because he would receive a lighter sentence than he was exposed to under the indictment.
The judge refused to allow Gaskins to use Owens' statement about acting recklessly, finding that it would be misleading to the jury and would, as noted, require further testimony to explain its significance. The trial judge's conclusion that those factors substantially outweighed the diminished probative value of a portion of Owens' statement was not a palpable abuse of his discretion, nor was it "so wide of the mark that a manifest denial of justice resulted." Carter, supra, 91 N.J. at 106.
Even if there had been an abuse of discretion, we find that any error was harmless because Gaskins was not, in fact, convicted of murder. Owens' statement that he acted recklessly did not tend to exonerate Gaskins with respect to the crime of which he was convicted, because recklessness was an element of that crime. Owens statement did not address the issue of whether he acted "under circumstances manifesting extreme indifference to human life," because it was not an element of the crime to which he was pleading guilty. Even if Owens had denied acting under such circumstances, his answer would not have been against his interest and, therefore, would have been inadmissible. Consequently, any error was harmless.
Finally, we turn to Gaskins' argument that his sentence was manifestly excessive. He asserts that the judge abused his sentencing discretion by imposing an extended term, consecutive terms for counts one and two, and the maximum available term for each.
"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).
Pursuant to N.J.S.A. 2C:44-3, upon request by the prosecutor, a judge may impose an extended term if he or she finds that the defendant is a persistent offender. See State v. Pierce, 188 N.J. 155, 168 (2006). The statute defines a persistent offender as
a person who at the time of the commission of the crime is 21 years of age or over, whoA review of Gaskins' criminal record supports the judge's finding that he qualified as a persistent offender.
has been previously convicted on a at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
The judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("risk that the defendant will commit another offense"); six, N.J.S.A. 2C:44-1(a)(6) ("defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The judge found no mitigating factors. He then concluded that the "aggravating factors substantially outweigh[ed] the mitigating factors."
Gaskins argues that the judge impermissibly "double counted" his criminal history because he relied on it in determining that an extended term was appropriate and then used it as the basis for finding aggravating factor three, that Gaskins would commit another offense. See State v. Vazquez, 374 N.J. Super. 252, 265-69 (App. Div. 2005). We disagree because, in contrast to the defendant in Vazquez, Gaskins had more than the two prior offenses required for a discretionary extended term.
Gaskins further argues that the trial judge erred by failing to apply two mitigating factors that he argues were supported by the record: factor eleven, N.J.S.A. 2C:44-1(b)(11) ("excessive hardship" to defendant or dependents); and factor twelve, N.J.S.A. 2C:44-1(b)(12) (defendant's willingness to cooperate). Although the judge acknowledged that Gaskins had three children and that he lived with two of them and their mother, there were no facts in the record to support an assertion that there would be a particular hardship for the children. In fact, that was not even one of the mitigating factors raised by defense counsel at sentencing. With respect to mitigating factor twelve, the judge stated:
The willingness of [Gaskins] to cooperate. Here, if it exists at all it is . . . almost meaningless in light of the fact that the State had testimony of Harper, the surviving victim who described what happened. It may be that [Gaskins] gave a statement, but giving a statement is not the kind of cooperation that's contemplated . . . by this factor. That's rejected too.We find no error in the judge's decision to find no mitigating factors.
The judge chose to apply the extended term to the attempted murder count because it involved a finding by the jury that he had acted purposefully or knowingly, as opposed to the reckless conduct involved in the aggravated manslaughter. He then chose to impose the maximum extended term for that offense, a life term, subject to NERA's eighty-five-percent period of parole ineligibility. N.J.S.A. 2C:43-7.2. With respect to the aggravated manslaughter, the judge also chose the maximum term available, thirty years, which is ten years longer than the maximum normally available for a first-degree crime. N.J.S.A. 2C:11-4(c); N.J.S.A. 2C:43-6(a)(1). That sentence was also subject to NERA.
The judge further determined to make the two sentences consecutive, rather than concurrent. It is within a sentencing judge's discretion to impose either consecutive or concurrent sentences. See N.J.S.A. 2C:44-5; State v. Yarbough, 100 N.J. 627, 636 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). A sentencing judge must consider the following factors in making that decision:
(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;(4) there should be no double counting of aggravating factors;
(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;
(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).]
The judge explained his reasons for imposing consecutive sentences as follows:
I also find that there should be consecutive sentencing inasmuch as there are two separate victims. The defendant participated in arming his co-defendant or co-defendants, in assisting and aiding the attack that resulted in the death of the decedent Stover and his acts were completely different than the acts described in the evidence comprising his conduct against the attempted murder victim Harper. Two separate victims, two separate sets of acts. Actually, even at slightly different times and places. One set of acts, assisting in the and the arming and assisting in the get away, and the other acts being participation in the direct assault and attempted murder of the victim Harper. I use the word "assault" in a broader sense than the specific sense of the definition of a crime under the statute. The crime is attempted murder as found by the jury. Therefore, there will be consecutive sentencing.
Although the trial judge did not find all of the five "facts relating to the crimes" under Yarbough's third factor, that factor "should be applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 428 (2001) (citing State v. Kruse, 105 N.J. 354, 363 (1987)). "It follows that a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28. Additionally, the Supreme Court has held that Yarbough's "multiple-victims factor . . . is entitled to great weight and should ordinarily result in the imposition of at least two consecutive sentences," State v. Molina, 168 N.J. 436, 443 (2001), even where that fact is the only basis for consecutive sentences, id. at 442.
Although we see no error in the judge's decision to impose consecutive sentences under the circumstances of this case, we are troubled by his decision to impose the maximum extended term and then a consecutive maximum-term sentence, both of which are subject to NERA. Both sentencing and appellate courts must carefully consider the real-time NERA consequences of consecutive sentences. State v. Marinez, 370 N.J. Super. 49, 58-59 (App. Div.), certif. denied, 182 N.J. 142 (2004). Our review of the sentencing transcript convinces us that the NERA consequences of the maximum consecutive sentences, one of which was an extended term, were not adequately considered by the trial judge. In addition, the judge did not adequately explain his reasons for imposing such a sentence. Consequently, we remand for resentencing, at which time the judge shall carefully consider the real-time NERA consequences of the resulting sentence.
In summary, we affirm the conviction, vacate the sentence for the count that was severed but never tried, and remand for resentencing on counts one and two consistent with this opinion. We do not retain jurisdiction.
Affirmed in part, vacated in part, and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION