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State v. Rogers

Decided: May 23, 1991.

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



On certification to the Superior Court, Appellate Division, whose opinion is reported at 236 N.J. Super. 378 (1989).

The opinion of the Court was delivered by Clifford, J. Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.

Clifford

The trial court sentenced defendant on two counts of felony murder to consecutive thirty-year terms of imprisonment without eligibility for parole. The Appellate Division vacated those sentences and remanded to the trial court for resentencing, concluding that this case was one in which "the Yarbough guidelines may be satisfied by having the [custodial] terms run concurrently in part and consecutively in part." 236 N.J. Super. 378, 381 (1989). See State v. Yarbouqh, 100 N.J. 627, cert. denied, 475 U.S. 1014, 89 L. Ed. 2d 308 (1986). We granted certification to determine whether the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4 (Code), and the sentencing guidelines set forth in Yarbough permit a court to impose, for multiple offenses, sentences that are partially consecutive and partially concurrent. We conclude that they do not. However, because the trial court did not properly identify the aggravating factors in imposing sentence and failed to consider the facts relating to the crimes in determining that the sentences for the felony murders

should run consecutively, we affirm the disposition of the Appellate Division remanding the case for resentencing.

I

At approximately 8:10 p.m. on November 26, 1985, Edward Craig and Guyron Walker entered the V & J Tavern in Newark and headed for the telephone booth in the back. After fifteen minutes or so, Craig walked behind the bar, put a gun to the head of the bartender, and announced, "This is it, everybody down." Walker, who had made his way to the front door to serve as Craig's cover during the hold-up, shouted, "All right, you heard him. Everybody on the floor." All but one of the eight to ten patrons complied; James Gilchrist was apparently so drunk that he did not understand the orders. Walker approached Gilchrist, who was still standing, and punched him in the face, knocking him to the floor. Robert Walls, an off-duty Essex County sheriff's officer, reached for his gun. Seeing Walls make that move, Walker fired a shot in the officer's direction. Craig also fired several shots. The barrage killed Nathaniel Taylor, another off-duty sheriff's officer. Walls suffered two bullet wounds, from which he died twenty-two days later. The robbers fled the bar with a purse containing a gold watch, $45, and a small quantity of cocaine valued at $20.

The evidence established that defendant, Alan Rogers, had supplied the guns and had driven the getaway car. The jury convicted Rogers of two counts of felony murder, N.J.S.A. 2C:11-3a(3), and one count each of armed robbery, conspiracy to commit robbery, possession of a gun for an unlawful purpose, and possession of a gun without a permit. After merging the convictions for armed robbery, conspiracy, and possession of a gun for an unlawful purpose into the two counts of felony murder, the trial court sentenced defendant for each murder to the statutory minimum term of thirty years of imprisonment without parole. See N.J.S.A. 2C:11-3b. Declaring that

"[t]here are to be no free killings," the court ordered that the terms be served consecutively. It also sentenced Rogers to a concurrent five-year term for possession of a gun without a permit.

The Appellate Division, in an unreported decision, reversed defendant's conviction for possession of a gun without a permit but affirmed the other convictions. Addressing in a separate reported opinion Rogers' argument that "the sentence imposed [for the felony murders] was manifestly excessive," the court remanded for resentencing because it concluded 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 Yarbouqh guidelines may be satisfied by having the terms run concurrently in part and consecutively in part.

[236 N.J. Super. at 381.]

We denied defendant's petition for certification but granted the State's cross-petition, 121 N.J. 604 (1990), which was limited to the question of whether a court can impose sentences that run concurrently in part and consecutively in part.

II

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