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State v. Rogers

Decided: October 30, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALAN ROGERS, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Essex County.

King, Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D.

Brody

[236 NJSuper Page 380] Defendant was convicted as an accomplice of two felony murders, contrary to N.J.S.A. 2C:11-3a(3). By its verdict the jury accepted the State's evidence that two men entered a bar to commit robberies while defendant waited outside behind the wheel of their getaway car. In the course of the robberies the men shot and killed two patrons who happened to be off-duty sheriff's officers out of uniform. We affirmed the convictions in a per curiam opinion filed today, leaving to this opinion a

discussion of defendant's argument that "the sentence imposed was manifestly excessive."

The basic issue argued at the sentencing hearing was whether defendant should receive concurrent or consecutive prison terms for the two murders. The trial judge imposed a 30-year prison term without parole for each murder, the statutory minimum sentence for murder. N.J.S.A. 2C:11-3b. However, he ordered that the terms be served consecutively, apparently believing that he had no choice in view of the first guideline in State v. Yarbough, 100 N.J. 627, 643 (1985), cert. den. 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), that "there can be no free crimes in a system for which the punishment shall fit the crime."

We conclude that Yarbough did not require the sentencing judge to impose for this double murder a minimum prison term of 60 years without parole regardless of the circumstances. Where the extraordinarily long term of 30 years without parole is the minimum statutory sentence for each of two crimes, the Yarbough guidelines may be satisfied by having the terms run concurrently in part and consecutively in part.

As noted in Yarbough, although the Code defines standards that must be applied when imposing sentences for particular offenses, the Code "does not define with comparable precision the standards that shall guide sentencing courts in imposing sentences of imprisonment for more than one offense." Id. at 636. Yarbough fills that gap by providing "general senencing guidelines for concurrent or consecutive-sentencing decisions (including any parole ineligibility feature) when sentence is pronounced on one occasion. . . ." Id. at 644. Nothing in either the Yarbough guidelines or in the Code prohibits imposition of sentences that are partially concurrent and partially consecutive.

These are the Yarbough guidelines:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be ...


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