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State v. Taliaferro

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SEAN TALIAFERRO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 05-09-2009-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 11, 2007

Before Judges Winkelstein and LeWinn.

Following a jury trial on February 15 and February 16, 2006, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and third-degree eluding, N.J.S.A. 2C:29-2b. The court imposed a seventeen-year extended prison term on count one, with an eighty-five percent period of parole ineligibility. On counts two and three, the court imposed five-year prison terms, with two and one-half years of parole ineligibility. The sentence on counts two and three were concurrent with each other and consecutive to the sentence on count one. On appeal, defendant raises six points for our consideration:

Point 1 The trial court should have excluded the victim's out-of-court identification because the identification procedure was impermissibly suggestive and resulted in a very substantial likelihood of irreparable misidentification, unfairly prejudicing defendant at trial.

Point 2 Admitting as excited utterances the alleged victim's out-of-court description of the perpetrator and subsequent identification of defendant was erroneous and violated defendant's confrontation rights.

Point 3 The Court should vacate defendant's robbery conviction because admitting the victim's videotaped testimony unfairly prejudiced defendant.

Point 4 The prosecutor's comments during closing denied defendant a fair trial of the eluding charge (not raised below).

Point 5 The trial court erred in denying defendant's motion to dismiss the State's robbery and receiving stolen property charges.

Point 6 Remand is required because defendant's sentence is improper and excessive.

Having carefully considered defendant's arguments in light of the record and the prevailing law, we affirm his conviction, but vacate his sentence and remand for resentencing.

On July 23, 2005, at approximately 9:00 p.m., Tina Laspina was walking in Atlantic City when a man got out of an SUV, ran up to her and punched her in the face. The man, whom Laspina later identified as defendant, took her money, ran back to the vehicle, and drove away. Another individual was in the passenger seat.*fn1 A few minutes later, Laspina gave Officer Dean Dooley a description of the person who robbed her and of the car he was driving. She described the man as a large black male with a bald head and beard wearing a white T-shirt. She described the car as a silver Lexus SUV.

Dooley radioed the description to police dispatch and then called for an ambulance for Laspina, who was visibly upset and bleeding from the mouth. She received medical attention on the scene, but refused to go the hospital. She was taken from the scene in Officer Paul Aristizabal's police cruiser.

Sergeant Rodney Ruark heard the police dispatch of the robbery suspect's description. Approximately twenty minutes later, he observed a silver Toyota 4Runner turning into a gas station on Route 30. He saw a bald, black male with a full beard wearing a white t-shirt in the driver's seat. Ruark called Aristizabal and asked him to confirm with Laspina whether there had been a passenger in the suspect's SUV and whether the suspect was bald. Laspina stated that the suspect was bald and she believed a passenger was in the SUV.

Ruark drove directly behind the SUV and turned on his overhead lights and side spotlight. The SUV did not stop. He then activated his siren and advised dispatch that the SUV was not stopping. Defendant stopped the vehicle approximately a mile later, and ran from the SUV to a nearby apartment complex where he was apprehended. He was placed in the back of Officer DePaul's police car.

Laspina was transferred to Dooley's car. Dooley and DePaul decided to perform a show-up in a nearby vacant lot. DePaul arrived first with defendant. When Dooley pulled into the lot with Laspina, DePaul placed defendant, in handcuffs, in front of Dooley's car headlights. Laspina, from inside Dooley's car, positively identified defendant as the man who had robbed her. The identification took place approximately thirty minutes after the robbery.

Defendant challenged the identification procedure and on February 1, 2006, the court conducted a Wade*fn2 hearing. At the hearing, conducted just over six months after the incident took place, Laspina testified that she no longer remembered what the robber looked like, but she did recognize defendant at the time of her identification as the man who robbed her. She testified that the man the police showed her "looked just like [the robber]," but she was not one-hundred percent certain. Laspina testified that she had used heroin on the afternoon that she was robbed and that she had been "under the influence," but the drug's effects had worn off by the time she was assaulted.

Dooley testified that Laspina was afraid of defendant during the show-up identification and crouched down in the seat of the police car; that she was attentive throughout the process and did not appear to be under the influence of any substances. The court concluded that the identification was not impermissibly suggestive.

Trial commenced on February 15, 2006, and concluded the next day. Laspina was subpoenaed to testify at trial, but did not appear. The State moved to admit her statements to Dooley immediately after the robbery and at the show-up as excited utterances. The testimony would include Dooley's observations of Laspina's demeanor, that she was bleeding and crying, and that she was speaking so rapidly that the officer could barely understand her and had to tell her to slow down. The court admitted the statements as excited utterances over defendant's objection, but limited its ruling to those statements made to Dooley during their initial contact.

The State also attempted to have the court admit Laspina's response to Aristizabal after Ruark called him to confirm with Laspina the description of the driver, and whether a passenger was in the vehicle. The court did not rule on that request; the judge said he would hear an objection "at the time [Ruark testified] if it's appropriate." When the State later elicited that testimony from Ruark, defense counsel did not object.

Immediately after the court admitted Laspina's statements to Dooley, defense counsel moved for admission of the videotape of Laspina's Wade hearing testimony. The court did not immediately rule on its admissibility, stating that it would wait until after the State's case was completed to determine if Laspina was unavailable to testify. The next day, the issue was raised again and defense counsel asserted that he wanted to admit the tape because Laspina did not appear in court. Defense counsel stated that his cross-examination of her at the Wade hearing "suffice[s] with respect to its depth with respect to the . . . issues that are going to be before the jury." The court addressed defendant personally to confirm that he wanted the tape admitted, and defendant answered affirmatively. Prior to the tape being played for the jury, the court found that Laspina was unavailable to testify, and that defendant had a full and complete opportunity to cross-examine her during the Wade hearing.

We begin our discussion with defendant's challenge to the out-of-court identification. He argues that the show-up was impermissibly suggestive because the police made suggestive statements to Laspina prior to the identification; defendant was handcuffed; and he was the only suspect shown to Laspina. Defendant also argues that the identification was not reliable because Laspina had little opportunity to view the assailant; her description of the assailant was vague; she was allegedly thirty-five feet away from defendant during the show-up; her level of certainty as to the identification was not high; and she had been under the effects of heroin.

Following the Wade hearing, the court held that the identification was not impermissibly suggestive because the "victim was requested to observe and see whether she could make [an] identification. She was not told much beyond that she was going to be brought in to make some kind of identification." The court also held that the identification was reliable because the victim made an "instantaneous and positive identification" of defendant, she did not appear to be under the influence of drugs, she accurately described defendant to the police, and only a short time had passed, approximately thirty minutes, between the robbery and the show-up.

In conducting a Wade hearing, a court must undertake a two-step analysis to determine first, whether the identification procedure was impermissibly suggestive, and if it was, whether it was nonetheless reliable. State v. Herrera, 187 N.J. 493, 503-04 (2006). One-on-one show-ups are not per se impermissibly suggestive. Id. at 504. Nor does the fact that a suspect is handcuffed and in police custody automatically render the identification impermissibly suggestive. State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003); see also State v. Wilkerson, 60 N.J. 452, 461 (1972) (one-on-one identifications made at or near the scene of the initial observation within a reasonably short time "comes well within the exception to the Wade rule").

To determine reliability, a court should consider the following factors and weigh them against the corrupting effect of the impermissibly suggestive identification: "'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Herrera, supra, 187 N.J. at 503 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977)).

In Herrera, supra, the police made several statements to the victim prior to taking him to the hospital where the defendant was to conduct a one-on-one show-up. Id. at 497. Prior to the show-up, officers told the victim that they had located his car and that they would take him "to [the hospital to] identify the person." . . . [They] "found your car, we located your car with somebody in it, we want you to come with us to identify the person." . . . [They] told him that the individual was now in the hospital and that they would take [the victim] to "the hospital to identify [the man]." . . . [The victim's] "vehicle was recovered, . . . there was an occupant, and that we were going out there to look, let him look at the occupant."

[Id. at 506.]

The Court found that the officers did not follow the Attorney General's Guidelines for conducting identifications to "avoid saying anything to the witness that may influence the witness' selection." Ibid. n.3 (citation omitted). The Court held that the police officers' statements, combined with the inherent suggestibility of a show-up, made the victim's show-up identification impermissibly suggestive. Ibid.

The Court then weighed the Manson factors against the corrupting effects of the impermissibly suggestive show-up and determined that the identification was nonetheless reliable because the victim had a sufficient opportunity to view the defendant, had seen the defendant on previous occasions, provided an accurate description of the defendant, was certain of the identification at the confrontation, and identified the defendant within five hours of the crime. Id. at 507-09.

In this case, the police did not follow the Attorney General's Guidelines, which generally require lineups. Instead, the police conducted a show-up. The police also made statements to the victim prior to identification. That said, we agree with the trial judge that the identification was admissible. When Laspina was asked by defense counsel, "[the police] bring the defendant and what do they say to you? Do they say take a look at this person? Is this the guy?", she answered "[y]es." Aristizabal testified that prior to transferring Laspina to Dooley's car, he asked her "if she would come back with me . . . because there might have been a . . . male that could have been involved in her robbery to see if she could possibly identify him. . . . I asked her if she could look at this person and see if it could possibly be the male that had robbed her." Dooley testified that as they pulled into the location of the show-up, he "might have said . . . this possibly [is] someone involved in the incident . . . was this the person involved in the incident or . . . something along those lines."

None of the questions or statements the officers made to Laspina suggested that the person about to be shown to her was "the man" who assaulted her as was the case in Herrera, supra, 187 N.J. at 497. Nor was the fact that defendant was handcuffed impermissibly suggestive. Wilson, supra, 362 N.J. Super. at 327. Here, each time the police spoke with the victim, they spoke only in terms of there being a possibility that the person she was to be shown was the person who attacked her. The possibility that the person being shown to the victim might be the assailant is implicit in the fact that the victim is being shown the person. In Herrera, supra, the police told the victim that he was being taken to identify "the person" or "the occupant," of his stolen car. 187 N.J. at 506. This phrasing is inherently suggestive, in that it takes for granted the "the person" or "the occupant" is the guilty party. No such language was used here. The police simply told Laspina that there "might" be someone that she could "possibly" identify. This does not make the identification impermissibly suggestive.

Analyzing the second part of the test, reliability, is only necessary when the identification was impermissibly suggestive. Although we conclude that the identification was not impermissibly suggestive, we will nevertheless discuss the reliability of the identification. In doing so, we conclude that the identification was reliable.

Laspina testified that she watched defendant approach her from several feet away and get within arms length to hit her. She told Dooley that the suspect was a large black male with a bald head and beard wearing a white T-shirt driving a silver SUV. Her description of the suspect proved accurate as defendant fit that description when he was arrested.

At the time of the identification, Laspina appeared certain of the identification. Dooley testified that immediately after defendant was removed from the back of the police car, Laspina slid down in her seat, as if in fear, and said "that's him." At the Wade hearing, she testified that she identified defendant at the show-up because she recognized him as the man who had hit her. On cross-examination, when she was questioned about how clearly she saw defendant, she reiterated that she identified him at the show-up "[b]ecause [he] looked just like the man." She stated that her memory of her attacker was better on the night it happened as compared with the day of the hearing. The time between the robbery and the identification was approximately thirty minutes. These factors weigh in favor of finding the identification reliable.

We are cognizant that Laspina testified that she had taken heroin that day. Nevertheless, Dooley testified at the Wade hearing that Laspina did not appear to be under the influence of any substance, and Laspina testified that the effects of the heroin had worn off by the time she was assaulted. On these facts, it would be speculation to conclude that her use of heroin earlier in the day rendered the identification unreliable.

Next, we turn to defendant's challenge to the admission of Laspina's statements as excited utterances. Defendant argues that the court erred in admitting Laspina's description of the suspect to Dooley, her confirmation of the description, and her statements at the show-up as excited utterances in violation of his Sixth Amendment right of confrontation. See Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2d 224 (2006).

The trial court held that they were excited utterances because the statements occurred within minutes of the robbery, and Laspina was still under the shock of the robbery. The following day, the trial court clarified its finding on the admissibility of the statements, concluding that Laspina was an unavailable witness and that defendant had an opportunity to confront and cross-examine her at the Wade hearing. See N.J.R.E. 804(a), (b).

What is commonly referred to as the excited utterance exception to the hearsay rule, N.J.R.E. 803(c)(2), provides that out-of-court statements offered for the truth of the matter asserted may be admitted if the statements "1) [relate] to a startling event or condition; 2) [are] made while the declarant was under the stress of excitement caused by the event or condition; and 3) [are made] without opportunity to deliberate or fabricate." State v. Branch, 182 N.J. 338, 365 (2005) (citation omitted). The excited utterance exception should not, however, be used as a vehicle for introducing past narratives from non-testifying defendants. Ibid.

Here, Laspina's initial statements to Dooley meet the first prong of the Branch test because her statements related directly to the robbery in that she provided a description of the suspect and the events that took place. The second prong is also met because she was still under the stress and excitement of the robbery, visibly upset and bleeding, when she made the statements, just minutes after the robbery.

The third prong is met because Laspina had no opportunity to deliberate or fabricate her statement. When determining whether there was an opportunity to deliberate or fabricate, a court should "consider the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of utterance." Id. at 366. (citation omitted). Laspina's initial statements to Dooley were made within a few minutes of the crime. She had been punched in the face by an unknown assailant and was bleeding, shaking and crying when she approached Dooley; and her statements were made in an excited unreflective manner. She approached Dooley and spontaneously told him that she had just been "beat up and robbed." Dooley had a hard time understanding her because she had difficulty speaking from shaking and crying. Dooley asked her what happened and she gave him the description of defendant and of the events that took place. This situation provided her no opportunity to deliberate or fabricate her statement.

Next, we turn to Ruark's testimony that Aristizabal told him that the victim confirmed the description of the man who assaulted her and that a passenger was in the car with him. Ruark did not repeat the suspect's description; he testified that when he compared the description of the person who he observed driving the car with the confirmation of the description that Laspina gave to Aristizabal, the descriptions matched. Defendant did not object to that testimony. If no objection is made to the allegedly improper evidence, we infer that defense counsel did not believe the evidence was prejudicial. State v. Macon, 57 N.J. 325, 333 (1971); see also State v. Timmendequas, 161 N.J. 515, 575-76 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The testimony is then analyzed under the plain error rule; that is, whether the error had the clear capacity to bring about an unjust result. R. 2:10-2. This in turn is analyzed within the context of the entire case, not limiting the analysis solely to the improper evidence. Timmendequas, supra, 161 N.J. at 575. Here, in the context of the totality of the trial evidence, we find no plain error.

Next, defendant challenges the victim's statement when she identified him approximately one-half hour after the attack. That statement too was admissible as an excited utterance. At the show-up, when defendant was placed in front of the car headlights, she exclaimed, "that's him, but I'm scared." Given the brief period of time between the attack and the identification, and Laspina's demeanor at the time she observed defendant, her statement possessed the indicia of trustworthiness to qualify it for admission for substantially the same reasons as her initial statements to Dooley. Additionally, her exposure to her attacker was in itself a startling event. As soon as she was shown defendant, she spontaneously exclaimed, "that's him . . . I'm scared" and hid in the seat of the police car. The immediacy of her words and actions indicate that she was still under the stress of being exposed to her attacker and had no time to deliberate or fabricate, qualifying her statements as excited utterances.

Laspina's initial statements to Dooley and her statements at the show-up were also admissible under N.J.R.E. 804(b)(1)(A). Where a witness is unavailable to testify, testimony given in a prior hearing is admissible if the "party against whom the testimony is now offered had an opportunity and similar motive in the prior . . . hearing . . . to develop the testimony by examination or cross-examination." N.J.R.E. 804(b)(1)(A). The declarant, Laspina, was unavailable because she refused to appear to testify after being subpoenaed by the State. See N.J.R.E. 804(a)(4).

At the Wade hearing, defendant had the opportunity to fully cross-examine Laspina. The transcript of the hearing contains over twenty-one pages of cross-examination. Defense counsel cross-examined Laspina on her drug problem; her use of drugs on the day of the robbery; her mistaken description of the suspect's SUV as a Lexus; her inability to recognize defendant at the hearing or remember clearly events from that night; how quickly the incident took place and her limited time to view the suspect; inconsistencies between her memory of events and those of the police officers that testified; her ability to see defendant during the show-up; her motives and certainty in making an identification of defendant; and her motives in testifying for the State. Defendant's motive in discrediting her at the hearing was the same as it would have been at trial.

For substantially the same reasons, defendant's confrontation rights under the Sixth Amendment were not violated by the admission of Laspina's out-of-court statements. Though a defendant's Sixth Amendment right may be abridged by the admission of a testimonial out-of-court statement, if that witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness, the defendant's Sixth Amendment rights are satisfied. Davis, supra, 547 U.S. at ___, 126 S.Ct. at 2273, 165 L.Ed. 2d at 236. Here, assuming Laspina's out-of-court statements were testimonial, because of the extensive opportunity defendant had to cross-examine her at the Wade hearing those statements were properly admitted in evidence. Although "the right of a party to confront witnesses in court is one of the principal values protected by the hearsay rule," Branch, supra, 182 N.J. at 342, defendant was not denied that right.

Defendant next argues that the admission of the videotaped Wade hearing was unduly prejudicial and warrants a new trial. We disagree. Defendant affirmatively requested the court to admit the videotape into evidence. A defendant may waive a constitutional right so long as that waiver is knowingly and voluntarily given. State v. Morton, 155 N.J. 383, 440 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). So it was here. When defendant moved to admit the videotape, the following exchange took place:

Court: You have the right to confront witnesses against you. . . . I have ruled [that] the State may not introduce the videotape of [Laspina's] testimony . . . I want you to tell me whether or not you agree with your lawyer that you want to have the tape admitted . . . you understand that you would have the right to confront Miss Laspina in person here in Court . . . [y]ou understand that I issued a bench warrant for her arrest . . . Understanding all of those things then, it is still your desire to have this tape played to the jury today?

Defendant: Yes Court: Yes?

Defendant: Yes The doctrine of invited error also defeats defendant's argument. Defendant affirmatively moved to admit the videotape. A defendant may not "'request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). Defendant moved for admission of the videotape, and now seeks a determination that the admittance of the videotape is error. This is invited error.

Next, we address defendant's challenge to the prosecutor's closing comments. He asserts that the prosecutor improperly commented about the length of time that it takes to drive on Route 30.

Prosecutorial misconduct is not grounds for reversal unless it was so egregious that it deprived defendant of a fair trial.

Timmendequas, supra, 161 N.J. at 575. When no objection is made to the comments, we presume that defense counsel did not believe the comments were prejudicial. Id. at 575-76.

Here, the prosecutor's comments relate to the eluding charge against defendant. Ruark testified that the chase lasted approximately two minutes along Route 30. On cross-examination, Ruark admitted that based on police dispatch logs, the chase lasted only 37 seconds. He stated, however, that the logs were not completely accurate because of the time delays in dispatch typing information into the computer system.

In her closing, the prosecutor attempted to address the discrepancy by stating:

So we get to the 37 seconds. . . . I mean use your life's experience. You don't have to take anybody's word for it. . . . There are some of you, no doubt, with knowledge of that area of Route 30. And you talk to each other. Talk to each other if you've driven it. Fourteen blocks. That's the number.

Talk to yourselves about how long it takes to drive that and whether it takes 37 seconds.

The prosecutor effectively asked the jurors to rely on information outside of the evidence and discuss it with each other. Although the comments were improper, they were not capable of producing an unjust result because of the substantial evidence of defendant's guilt on the eluding charge. The State presented a map to demonstrate where the chase started and where it ended. Ruark testified that defendant was traveling at fifty to sixty miles per hour and was weaving in and out of traffic. He testified that during the chase, defendant crossed several intersections and made several turns while he pursued him with the police cruiser's lights and sirens on. He testified that defendant did not stop for fourteen blocks after he turned his lights on; he was traveling fast and ultimately fled the SUV on foot. The passenger in the SUV, the co-defendant, testified that she saw Ruark behind them with his lights and sirens on and asked defendant why he was not pulling over. In light of the substantial evidence of defendant's guilt, the prosecutor's comments did not produce an unjust result.

We next address defendant's claim that the robbery and receiving stolen property charges should have been dismissed for lack of sufficient evidence to warrant a conviction. Defendant asserts that the robbery charge was based on inadmissible outof-court and videotaped Wade hearing statements by Laspina and that the receiving stolen property conviction should be reversed because the State presented no evidence that the defendant "knowingly" received stolen property.

A judgment of acquittal is warranted when the evidence presented by the State is insufficient to warrant a conviction.

R. 3:18-1.

On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. [State v. D.A., 191 N.J. 158, 163 (2007)].

Defendant was charged with second-degree robbery, N.J.S.A. 2C:15-1. A defendant is guilty of that charge if "in the course of committing a theft, he [i]nflicts bodily injury or uses force on another." Here, the evidence supported the conviction. The testimony of the State's witnesses provided a description of the incident - defendant punched Laspina in the face and stole money from her; Laspina provided a description of the suspect and the SUV he was driving. Defendant and the SUV he was driving matched that description; and the victim identified defendant as the suspect. Ruark placed defendant in the area several moments after the robbery, in a vehicle matching the suspect's SUV. This evidence is such that a jury could properly find beyond a reasonable doubt that defendant was guilty of second-degree robbery.

Receiving stolen property, N.J.S.A. 2C:20-7(a), requires that the State prove that defendant received the property "knowing that it has been stolen, or believing that it is probably stolen." Guilty knowledge may be inferred by the facts and circumstances of the case. State v. Jusiak, 16 N.J. Super. 177, 181-82 (App. Div. 1951).

The State produced evidence that the SUV defendant was driving was stolen through the testimony of Dr. Eugene Goldman, the SUV's owner. Dr. Goldman testified that the license plate number of the SUV that defendant was driving matched the license plate number of his Toyota 4Runner. Ruark testified that when he attempted to stop defendant's SUV, defendant continued driving, eventually stopping the SUV and fleeing on foot. Defendant's knowledge that the SUV was stolen may be inferred from this evidence. The trial court did not err in denying defendant's motion.

Finally, we address defendant's sentence. On appeal, our standard of review on sentencing is a "clear abuse of discretion." State v. Roth, 95 N.J. 334, 363 (1984). As to the robbery charge, defendant asserts that the trial court failed to follow the sentencing procedures set forth in State v. Pierce, 188 N.J. 155, 169 (2006). Once the court has determined that the defendant is eligible for enhanced-term sentencing, the court is to consider a sentence between the bottom of the original term range and the top of the enhanced-term range in view of aggravating and mitigating circumstances, and sentence the defendant within that range. Ibid. We agree with defendant that the court did not follow the procedure as outlined in Pierce. The court referred to the maximum sentence in the extended-term range, twenty years, but made no reference and gave no consideration to the bottom of the original term range as Pierce requires. Consequently, we vacate the seventeen-year term imposed on defendant's robbery conviction and remand for resentencing.

Defendant was sentenced to five years on each of the third-degree convictions. That five-year term exceeded the prior presumptive four-year term. See State v. Natale, 184 N.J. 458, 466 (2005). Here, because the trial judge sentenced defendant to a term in excess of the prior four-year presumptive term for the third-degree convictions, defendant is entitled to be resentenced in conformity with Natale.

Defendant also challenges the trial court's decision to impose consecutive sentences. We find no error in the trial court's reasoning in making the sentences imposed on the receiving stolen property and eluding convictions consecutive to the robbery conviction. Nevertheless, because we have determined that defendant is entitled to be resentenced pursuant to Pierce, supra, and Natale, supra, the trial judge may reconsider the question of consecutive sentences at the time of resentencing.

We affirm defendant's convictions, vacate his sentences, and remand for new sentencing.


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