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State v. Goins

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 6, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARTIN L. GOINS, A/K/A MARTIN LOUIS GOINS, MARTIN GOINS, AND MICHAEL JEFFERSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2284.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 7, 2008

Before Judges Parrillo, S. L. Reisner and Gilroy.

On December 1, 2004, defendant Martin L. Goins was charged by a Bergen County Grand Jury with two counts of first-degree carjacking, N.J.S.A. 2C:15-2 (Counts One and Three); and two counts of first-degree robbery, N.J.S.A. 2C:15-1 (Counts Two and Four). Tried to a jury, defendant was convicted on both counts of carjacking and of first-degree robbery on Count Four, but on Count Two he was convicted of the lesser-included offense of second-degree robbery.

On March 28, 2006, the State filed a motion seeking to sentence defendant to an extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a. On May 5, 2006, the trial judge granted the motion, sentencing defendant to an extended term of life imprisonment on his conviction on Count Three; and on his convictions on Counts One, Two, and Four, defendant was sentenced to terms of imprisonment of twenty-five years, eight years, and seventeen years, respectively. All sentences: 1) were made subject to the No Early Release Act (NERA),*fn1 and to parole supervision on release; and 2) are to run consecutive to each other. Defendant's aggregate sentence was life plus fifty years. All appropriate fines and penalties were imposed.

Defendant appeals. We affirm the convictions, and remand for re-sentencing.

I.

Defendant was convicted of carjackings and robberies of two Teaneck taxicab drivers: Shakeel Abassi on August 26, 2004, and Lester Morrigia on September 9, 2004. The following is a synopsis of the relevant facts adduced at trial.

On the evening of August 26, 2004, while working as a nighttime driver for the Teaneck Cab Company, Abassi was dispatched to the Radisson Hotel in Englewood. On arrival at the hotel, Abassi observed a man, later identified as defendant, pacing back and forth on the sidewalk. Abassi described the man as black and wearing a cap, a dark green or black T-shirt with a round collar and half sleeves, jeans with paint stains at the bottom, and white sneakers.

Defendant climbed into the back of the taxi, directing Abassi to drive him to a 7-Eleven convenience store, before commencing to Genesee Avenue, a dead end street surrounded by woods that bordered Teaneck and Englewood. As the taxi approached the 7-Eleven store, defendant directed Abassi to turn onto Genesee Avenue and proceed to the end of the street.

After he stopped the taxi, Abassi, while still looking straight ahead, informed defendant of the amount of the fare.

All of a sudden, defendant grabbed Abassi by his neck. Although Abassi did not see the object defendant poked at his neck, he believed it was a knife and that he was going to be cut. Defendant ordered Abassi to give him his money. Abassi handed defendant money from a recent fare and from his wallet. After Abassi informed defendant he had no more money, defendant told him to park the taxi and to exit the vehicle.

Defendant exited the taxi with Abassi, and then proceeded to grab Abassi by his hair, hitting him over the head with a hard object, which caused Abassi to momentarily black out. When Abassi awoke a few seconds later, he pretended to be dead so that defendant would not harm him any further. From the corner of his eye, Abassi saw defendant enter and start the taxi, at which point Abassi stood up, fearful that defendant would run him over with the taxi. In addition to the money, defendant also took Abassi's cell phone. Abassi, who was bleeding from his face, picked up his wallet and ran to the nearby 7-Eleven store where he called his dispatcher, who, in turn, called the police.

The police arrived on the scene and called for an ambulance to take Abassi to a nearby hospital. When Abassi was released from the hospital a couple of hours later, the police drove him to Teaneck Road to possibly identify the man who had attacked him from a group of four people the police had assembled. As the police car drove slowly by the suspects, Abassi stated that the perpetrator was not in the group. Next, the police took Abassi to an abandoned taxi they had found, which Abassi identified as his. The police then accompanied Abassi back to the Radisson Hotel where he was shown the hotel's surveillance tapes, and from which he identified a man wearing a cap and paint stained jeans as the person who had robbed him. Subsequent to the incident, Abassi looked at photo arrays on three different occasions, and only identified one person in one of the arrays that resembled the robber.

Detective Andrew McGurr testified concerning the police response to the carjacking and robbery of Abassi. After learning of the incident, McGurr went to the hospital to talk to Abassi. In the interim, another officer was sent to review the surveillance tapes of the Radisson Hotel. The officer found footage from the appropriate time of the hotel pickup, which showed a male resembling the perpetrator Abassi had described.

Following Abassi's release from the hospital, McGurr drove him to identify an abandoned taxicab the police had found. Abassi identified the taxicab as the one that had been stolen from him that evening. McGurr then drove Abassi to the Radisson Hotel where he identified a man from the surveillance video as his attacker. The man Abassi identified was wearing a dark colored baseball cap, a dark colored T-shirt, denim jeans with white stains near the bottom of the pant legs, and white sneakers. The T-shirt had a white star on the front with a design across the back shoulders.

Subsequent to the incident, Abassi's taxi was examined by the Bergen County Sheriff's Department Bureau of Criminal Investigation. Fingerprints were found on the exterior driver's side window and on the passenger's side door; a palm print was found on the interior driver's side rear door.

On September 9, 2004, at around 1:30 a.m., the second taxi driver, Morrigia, was dispatched to First Street in Fort Lee. However, on arrival, he did not see anyone waiting for a cab. After approximately one minute, a person walking with an unusual gate and with thick gray hair sticking out from his baseball cap, entered the back of the taxi.

The passenger, also later identified as defendant, directed Morrigia to an address on Genesee Avenue in Teaneck. When the taxi reached the end of Genesee Avenue, defendant ordered Morrigia to "stop the car." Defendant asked Morrigia for change of a $50 bill and, while Morrigia was occupied, defendant placed a sharp object to his throat, demanding his money and wallet.

Morrigia handed over his wallet and money, and exited the taxi as ordered. As defendant exited the taxi, he told Morrigia to walk directly into the woods and not to turn around to look at his face. Defendant told Morrigia that if he did not comply, defendant would have to use his gun. While keeping a sharp object at his throat, defendant walked partially into the woods with Morrigia. Once Morrigia heard the taxi drive away, he turned around and walked to a gas station on Teaneck Road where he called his dispatcher, who then notified the police. The Teaneck Police responded to the call around 1:45 a.m., and found Morrigia's taxi abandoned a few blocks from the crime scene. The taxi was processed, and one palm print was found on the exterior of the driver's side rear door window.

McGurr was also assigned to this case. After Morrigia described his attacker to the police, McGurr asked the Bureau of Criminal Investigation to prepare a photo array. When Abassi viewed the array, which did not include a photo of defendant, he did not identify anyone; however, after Morrigia viewed the same array, he pointed to a photo of S.B., and stated that he was "80% to 90%" sure that S.B. was the culprit. An interview between McGurr and Morrigia revealed that the attacker had longer gray hair than S.B., which had stuck out from under a baseball cap, and that the attacker did not have a mustache or beard.

After S.B. was brought in for questioning, he provided palm prints and fingerprints; but upon comparison to those found on the two taxis, S.B.'s prints did not match. In addition, after observing the surveillance tape from the Radisson Hotel again, McGurr noted that the suspect walked with his knees pitched together, which did not comport with the way S.B. walked.

McGurr testified that after he became aware of the suspect's large size and of his difficulty walking, he realized the unlikelihood that the suspect traveled far after abandoning the taxis, prompting him to focus his attention on an apartment complex located at 1266 Teaneck Road. A resident of the complex, Debbie Owens, drew the police's attention, thus, her car was stopped. The vehicle was registered to Gregory Robinson. A photo of Robinson was obtained, and a new photo array, again without defendant's picture, was shown to the two victims. Abassi did not identify anyone from this array, but Morrigia indicated he was almost 100% sure that Robinson was the perpetrator; however, he wanted to hear the person speak and watch him walk before making a final decision. McGurr pursued the Robinson lead, but soon learned that Robinson had not been in New Jersey for the past several years.

On September 12, 2004, an Englewood taxicab company notified the police of a suspicious telephone call. Patrolman Gregory Rucker of the Teaneck Police Department and several Englewood police officers responded to the address of 241 Epps Avenue in Englewood. Rucker found defendant sitting on a couch on the porch at that address. When Rucker questioned him, defendant responded that the house belonged to a relative and he was waiting for someone to let him in. Defendant was taken to the Englewood Police station where he was questioned by a member of the Teaneck Police Department. Defendant denied involvement in the carjackings. After defendant was photographed, he was returned to his mother's home on Epps Avenue.

On September 23, 2004, McGurr went to Debbie Owens' apartment looking for defendant, but found no one there. Owens stopped by the Teaneck Police station later that day and spoke to McGurr. Based on this conversation, McGurr and Sergeant Kurschner conducted a motor vehicle stop of a car, and found defendant slouched down in its rear seat. McGurr noticed that defendant was wearing a black vest and a black T-shirt that had a star design on the left breast. When defendant stepped out of the car and removed his vest, there was a pattern on his shirt that matched the pattern from the T-shirt on the Radisson Hotel surveillance tape.

McGurr identified himself as the person in charge of the taxicab carjacking cases and asked defendant to accompany him to the Teaneck Police Station. Defendant agreed. On arrival, McGurr told defendant that he wanted to ask him some questions and provided defendant with his Miranda*fn2 warnings before starting the interview. McGurr presented defendant with a flyer that had a photo of the suspect from the Radisson Hotel surveillance tape, and told defendant that he was wearing the same shirt as the person in the photo. Defendant initially denied that the shirts were the same, but then hung his head down and asked "What do you need from me?"

McGurr discussed the two robberies with defendant and asked about the other clothing seen in the surveillance footage. Defendant responded that he had a hat and several pairs of sneakers, but that he had thrown the jeans out. McGurr was skeptical, and asked defendant if he had left any items at Owens' apartment. Defendant answered that he had a large duffle bag containing various belongings in the trunk of Owens' car. Another officer investigated and returned with a plastic bag with jeans identical to those seen in the surveillance tape, down to the paint stains, and a blue baseball cap. Defendant then gave a stenographically-recorded confession to both robberies.

Defendant's sworn confession to both robberies was read into the record at trial. Defendant confessed that on August 26, 2004, he had walked from his house to the Radisson Hotel. Once at the hotel, he used a hotel guest phone to call the front desk and have someone call for a taxi. Defendant's version of events was essentially the same as Abassi's, except defendant denied physically assaulting Abassi and denied taking his cell phone.

Defendant also confessed that on September 9, 2004, he had called for a taxi from a phone booth on First Street. After defendant told Morrigia to take him to Genesee Avenue, he robbed him. Defendant then made Morrigia exit the taxi, and told him to walk away from the vehicle. When Morrigia complied, defendant jumped into the taxi and drove away, abandoning the vehicle a couple of blocks away. Defendant denied threatening Morrigia with a weapon.

On September 24, 2004, Morrigia was shown a third photo array, which included defendant's photo, and it was at this time that Morrigia identified defendant as the person who had attacked him. The palm prints and fingerprints taken from the two taxis were analyzed against those of defendant and found to be a match in both cases.

On appeal, defendant argues:

POINT I.

COMMENTS BY THE TRIAL JUDGE AND IRREGULARITIES IN THE JURY PROCESS CUMULATIVELY DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).

A. THE CUMULATIVE EFFECT OF THE JUDGE'S INTERPRETATIONS AND COMMENTS DEPRIVED DEFENDANT OF A FAIR TRIAL BY AN IMPARTIAL JURY.

B. EVIDENCE THAT ONE OR MORE JURY MEMBERS WAS SLEEPING OR NOT PAYING ATTENTION DURING TRIAL AND THE COURT'S CHARGES, AND THAT ONE OR MORE MEMBERS MAY HAVE BEGUN CONSIDERING THE CASE BEFORE IT WAS SUBMITTED FOR DELIBERATIONS, DEPRIVED DEENDANT OF A FAIR TRIAL.

POINT II.

THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT. (NOT RAISED BELOW).

A. THE TRIAL COURT SHOULD NOT HAVE CHARGED THE JURY ON WHETHER DEFENDANT COMMITTED CARJACKING UNDER COUNT 3 BY "INFLICTING BODILY INJURY" ON THE VICTIM (MR. MORRIGIA) BECAUSE THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT THIS CHARGE.

B. THE TRIAL COURT SHOULD HAVE EXPLAINED HOW EACH OF THE ALLEGED USES OR THREATS OF FORCE AND THEFTS BY DEFENDANT RELATED TO EACH CARJACKING AND ROBBERY CHARGE; BY NOT DOING SO, THE INSTRUCTIONS PERMITTED THE JURY TO CONVICT DEFENDANT OF BOTH CARJACKING AND ROBBERY BASED UPON THE SAME CONDUCT.

C. THE TRIAL COURT DID NOT PROPERLY ADVISE THE JURY ABOUT DEFENDANT'S ALLEGED THREAT OF A GUN, NECESSITATING VACATION OF THE ROBBERY CONVICTION UNDER COUNT 4.

POINT III.

THE TRIAL COURT SHOULD NOT HAVE PERMITTED MR. MORRIGIA TO TESTIFY THAT HE RECOGNIZED DEFENDANT'S VOICE AS THAT OF THE PERPETRATOR; AT THE VERY LEAST, THE COURT SHOULD HAVE CONDUCTED A WADE*fn3 HEARING BEFORE PERMITTING THIS OUT-OF-COURT VOICE IDENTIFICATION INTO EVIDENCE AT TRIAL. (NOT RAISED BELOW).

POINT IV.

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE SHIRT WORN BY MR. ABASSI; THE MATTER SHOULD BE REMANDED FOR A HEARING.

POINT V.

DEFENDANT'S SENTENCE IS UNCONSTITUTIONAL, IMPROPER, AND EXCESSIVE.

A. PERMITTING DEFENDANT'S CONVICTIONS FOR BOTH ROBBERY AND CARJACKING TO STAND VIOLATED MERGER PRINCIPLES AND DEFENDANT'S STATE AND FEDERAL DOUBLE JEOPARDY RIGHTS.

B. THE TRIAL COURT'S IMPOSITION OF AN EXTENDED TERM OF LIFE IMPRISONMENT UNDER COUNT 3, AND ITS IMPOSITION OF CONSECUTIVE SENTENCES ABOVE THE MIDRANGE TERM FOR EACH CONVICTION, RESULTED IN AN OVERALL SENTENCE THAT'S MANIFESTLY EXCESSIVE AND CLEARLY UNREASONABLE.

Defendant raises the following additional arguments pro se:

POINT I.

[DEFENDANT] SEEKING TO VACATE SENTENCE IS ENTITLED TO EVIDENTIARY HEARING ON HIS CLAIMS IF HE ALLEGES FACT THAT IF PROVEN, WOULD ENTITLE HIM TO RELIEF.

POINT II.

DEFENDANT SUBMITS THAT THERE CAN BE NO GREATER INFIRMITY OR THREAT, TO INDIVIDUAL RIGHT TO DUE PROCESS, THAN A CIRCUMSTANCE SO BLATANTLY AMBIGUOUS, AS TO BE A CRIME SUCH AS DEPRIVATION BY FORGERY OR [DE]FRAUDING THE COURT.

II.

Because the arguments raised in Points I, II, and III of defense counsel's brief and in Point II of defendant's pro se brief were not raised below, we review those issues under the plain error rule. R. 2:10-2. A reviewing court will reverse on the basis of an unchallenged error, only if the error was "clearly capable of producing an unjust result." Ibid.; State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 337 (1971). To reverse for plain error, the reviewing court must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

We have considered all the arguments presented on appeal in light of the record and applicable law, and except for the arguments raised in Points IA and V of defense counsel's brief, we have concluded that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant argues in Point IA of defense counsel's brief that the trial judge's interruptions and comments deprived him of a fair trial. Defendant contends that the judge improperly treated his counsel before the jury, thereby discrediting the defense. Defendant asserts that, although when taken individually the judge's interruptions and comments would not warrant reversal, the cumulative effect of all of them violated his rights to a fair trial and to an impartial jury. We disagree.

Trial courts are given "great latitude" when conducting a trial, but "there are bounds within which the judge must stay." Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003)). It is the judge's responsibility to "'conduct the trial in a fair and impartial manner, without making remarks that might prejudice a party or which are calculated to influence the minds of the jury.'" Id. at 9-10 (quoting Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971)). "[O]fficial expressions of displeasure or disapproval may convey to the jury the belief that defense counsel was somehow acting improperly, disrespectfully, or deceptively; or worse yet, give the impression that the judge has an opinion of defendant's guilt or innocence." State v. Tilghman, 385 N.J. Super. 45, 59 (App. Div.), rev'd in part on other grounds, 188 N.J. 269 (2006); State v. Christie, 91 N.J. Super. 420 (App. Div. 1966).

A trial judge must be careful to "never unfairly criticize or humiliate counsel, especially in front of the jury." Persley, supra, 357 N.J. Super. at 10. Jurors tend to hold the trial judge in high regard and "have a natural tendency to look to the trial judge for guidance and may find it even where it is not intended." Tilghman, supra, 385 N.J. Super. at 59. Judges should always maintain "complete neutrality" and "refrain from making any comment that may be telegraphed or interpreted as judicial disparagement, disbelief or disapproval." Id. at 60.

Defendant cites thirteen instances where he claims that the trial judge interrupted his counsel during her opening statement and her cross-examination of witnesses, in a manner as to risk counsel's credibility with the jury, impairing defendant's case.

For example, defendant refers us to the following colloquy between the judge and his counsel during her opening statement:

DEFENSE COUNSEL: Well, when Deborah Owens, when you hear about Deborah Owens' character, her motivation and you also might want to consider how much you think the role of coincidence plays. You see Deborah Owens -- you also might want to look at who the owner of the car is that Deborah Owens is driving, who is that person and where are they and what do they look like. What do they look like.

And I think you will find that there's another person who fits possibly the description.

So you see, ladies and gentlemen --THE COURT: Fits what description? Are you talking about Deborah Owens, the car, and you find there's another person who fits the description?

DEFENSE COUNSEL: The person who owns the car, Billy Robinson, her boyfriend Billy Robinson, who she is driving his car. He's in North Carolina.

THE COURT: I didn't know what other person you were talking about. It came out of nowhere the other person.

DEFENSE COUNSEL: I'm sorry.

THE COURT: Stop talking when I talk. I said it's all right. Just proceed.

We reviewed the trial record, and considered the above colloquy and the twelve other incidents cited by defendant in context of the trial proceedings. The majority of the trial court's statements or comments objected to by defendant for the first time on appeal were not made by the judge gratuitously, but rather were stated in ruling on objections made by the Assistant Prosecutor to questions propounded by defense counsel to certain witnesses. We are satisfied that the judge's actions did not prejudice defendant in the eyes of the jury as to warrant reversal.

Referencing the colloquy that occurred during counsel's opening statement, we conclude that the judge's interruptions and comments were not made in an attempt to embarrass counsel. Nor did the judge try to limit the time counsel spent on her opening. The judge merely asked for clarification of what was arguably an ambiguous statement. If a juror was not paying close attention to counsel's statement, it could have easily been confusing to figure out what "other person" counsel was referring to. As to defendant's objection that the court admonished counsel not to talk while the judge was talking, the judge had previously instructed both, the defense counsel and the assistant prosecutor, that neither should try to speak when someone else is speaking, so as not to interfere with the transcribing of the proceedings. We take the comment in that context, nothing more.

Moreover, at the conclusion of the trial, the judge instructed the jury that they were not to take his rulings during the trial "as favoring one side or the other. Each matter was decided on its own merit." As to comments made by the judge in making his rulings, the judge instructed the jury to disregard the same: "Any remarks made by me to counsel or by counsel to me or between counsel, should not affect or play any part in your deliberations." Because the instructions were clearly given, it is assumed that the jury followed them. State v. Curcio, 23 N.J. 521, 527-28 (1957). Accordingly, we conclude that the cumulative effect of the court's interruptions and comments did not cause the jury to return a verdict it otherwise would not have reached.

III.

In Point V defendant challenges his sentences. Defendant argues that his sentences were "unconstitutional, improper and excessive." Defendant contends that the trial judge should have merged the robbery convictions under Counts Two and Four with the carjacking convictions under Counts One and Three. Defendant asserts that the imposition of an extended term of life imprisonment on his conviction on Count Three, together with the imposition of consecutive sentences above the mid-range term on the three other convictions, resulted in an overall sentence that was manifestly excessive and unreasonable.

We first address defendant's argument that the robbery convictions should have merged with the carjacking convictions because the robbery offenses were lesser-included offenses of the carjacking offenses. Defendant contends that "[c]arjacking is simply a form of robbery which the Legislature chose to single out for enhanced punishment (where it involves theft of a motor vehicle). Thus, the convictions under Counts [Two] and [Four] should have merged into the more-specific convictions for carjacking under Counts [One] and [Three]."

The issue of merger of a conviction of robbery with a conviction of carjacking was recently considered and rejected by the Supreme Court. State v. Drury, 190 N.J. 197, 211 (2007) (holding that carjacking is not simply a variety of robbery under a plain language analysis of the two statutes). See also State v. Garretson, 313 N.J. Super. 348, 359 (App. Div. 1998), certif. denied, 156 N.J. 428 (1998) (affirming the trial court's refusal to charge robbery and theft as lesser-included offenses in trial on carjacking indictment). Accordingly, we disagree with defendant's argument that the robbery convictions should have merged with the carjacking convictions. We now address the balance of defendant's arguments concerning his sentences.

When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court should modify a sentence "only when the trial court's determination was "'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). As such, this court may modify a sentence when it is satisfied that: 1) "the sentencing guidelines were not followed or applied;" 2) "the aggravating and mitigating factors found by the sentencing court were not based on sufficient evidence in the record;" and 3) "even though the sentence falls within the guidelines on the basis of factors supported by adequate evidence, the application of the guidelines to the facts of the particular case renders the sentence clearly unreasonable so as to 'shock the judicial conscience.'" Jarbath, supra, 114 N.J. at 401 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

Prior to sentencing, the State moved to have defendant sentenced to a mandatory extended term, pursuant to N.J.S.A. 2C:44-3a. The judge granted the motion based on defendant's criminal record; and defendant does not contest the trial judge's determination that he was extended-term eligible. The judge found three aggravating factors applicable in sentencing defendant on all four convictions: (3), "[t]he risk that defendant will commit another offense"; (6), [t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"; and (9), [t]he need for deterring the defendant and others from violating the law." In sentencing defendant on Counts One and Two, the judge also found aggravating factor (2), "[t]he gravity and seriousness of harm inflicted on the victim." The judge did not find any mitigating factors. The judge sentenced defendant on Count Three to an extended term of life imprisonment; on Count One to a twenty-five-year term of imprisonment; on Count Two to an eight-year term of imprisonment; and on Count Four to a seventeen-year term of imprisonment. All sentences were subject to the NERA and were to run consecutive to each other.

Defendant argues that the sentence imposed on Count Three should be vacated and that count remanded to the trial court for re-sentencing, pursuant to State v. Pierce, 188 N.J. 155 (2006). The State agrees, and we concur. The sentence imposed on Count Three is vacated, and that count is remanded to the trial court for a new analysis pursuant to Pierce, at which hearing the judge "may consider the full range of sentences available from the bottom of the ordinary-term range to the top of the extended-term range." Id. at 174.

Additionally, defendant argues that the sentences imposed on the remaining three counts should be vacated, and that those counts should also be remanded to the trial court for re-sentencing because "all sentences should not have been made consecutive to each other." Defendant does not challenge the imposition of consecutive sentences for the crimes of carjacking committed on different days, that is, imposing consecutive sentences on Counts One and Three. However, defendant asserts that it was improper to impose consecutive sentences on the convictions of carjacking and of robbery, which occurred at the same time, asserting that both crimes arose from the same course of conduct that lasted only one or two minutes. Defendant asserts that the objectives of carjacking and robbery "were not predominantly independent [from each other] from a sentencing perspective." We agree.

It is within the trial judge's discretion whether to make a sentence consecutive or concurrent. N.J.S.A. 2C:44-5a. However, "judges must exercise careful, common sense discretion in imposing punishment for . . . multiple offenses in order to ensure that the pyramiding of sentences does not offend notions of fairness or cruel and unusual punishment." State v. Juliano, 52 N.J. 232, 236 (1968). In making the determination, the focus of the court should be on the fairness of the overall sentence. State v. Sutton, 132 N.J. 471, 485 (1993).

Because the Code does not set forth standards to guide a sentencing court in deciding whether to impose consecutive or concurrent sentences, the Court in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), developed criteria to be applied in making those decisions:

(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 predominately 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 the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]*fn4

[Id. at 643-44.]

Courts should focus on the Yarbough Factor No. 3 and the five "'facts relating to the crimes'" when deciding between concurrent and consecutive sentencing. The five "facts relating to the crimes" should be "applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427 (2001). Aggravating and mitigating factors found should play a role in the evaluation. Id. at 424.

As to whether the sentences on the convictions of carjacking and robbery committed on the same day should be served consecutively or concurrently, the judge stated:

On August 26, 2004[,] defendant robbed and carjacked Shakeel Abassi. Defendant assaulted the victim inside and outside of the taxicab. He stole all of the victim's money and beat him until he was unconscious. After completing this robbery, he stole the victim's taxicab.

These two crimes will not merge because the robbery was a complete and separate act that is factually distinct from the carjacking. The act of robbery was complete when he beat the man unconscious. The carjacking took place after defendant took control of the vehicle and drove off. Therefore, these two crimes will not merge, but rather will run consecutively.

On September 9, 2004, defendant robbed and carjacked Lester Morrigia, Jr. He attacked the victim inside the taxicab and demanded the victim's money. Defendant ordered the victim to enter a nearby wooded area and threatened to shoot him to death if he turned around. After completing this armed robbery, defendant took control of the victim's taxicab and drove off. The act of robbery was complete when defendant ordered the victim into the woods. The carjacking commenced once defendant took control of the vehicle and drove off.

These two crimes will not merge but rather run consecutively. And that's what the Court has done. [(Emphasis added).]

We conclude from our review of the trial judge's statement of reasons for imposing consecutive sentences on Counts Two and Four (the robberies) to the sentences imposed on Counts One and Three (the carjackings), that the judge confused the principles of merger of convictions with the principles guiding courts in determining whether to run sentences concurrently or consecutively. The carjacking and robbery of Abassi occurred on August 26, 2004, and the carjacking and robbery of Morrigia occurred on September 9, 2004. In considering the five facts relating to the crimes as provided for Yarbough Factor No. 3 qualitatively, we are satisfied that they require the imposition of concurrent sentences on the robbery convictions to the sentences imposed on the convictions of carjacking.

Although the conviction of robbery does not merge with the conviction of carjacking for reasons previously stated, the objectives of the crimes were not predominantly independent of each other; the crimes were committed closely in time and space; and only involved a single victim, not multiple victims. In addition, we are satisfied from viewing the overall sentence which defendant is subject to, that is, an extended-term sentence on first-degree carjacking on Count Three and to a consecutive sentence on first-degree carjacking on Count One, that the imposition of consecutive sentences on the robbery convictions to the carjacking convictions was excessive. Accordingly, we vacate the imposition of consecutive sentences imposed on Counts Two and Four to the sentences imposed on the convictions on Counts One and Three.

Lastly, although not argued by defendant as a separate ground for vacating the sentence imposed on Count One, we are satisfied that the trial judge should not have found aggravating factor (2) when sentencing defendant on that conviction because it resulted in double counting. "[D]ouble-counting is unfair and not permitted." Jarbath, supra, 114 N.J. at 404. An element of the offense may not be cited as an aggravating factor to increase punishment. State v. Kromphold, 162 N.J. 345, 353 (2000); Yarbough, supra, 100 N.J. at 633. In prohibiting double-counting, the Court reasoned that the Legislature had already considered the elements of an offense in the gradation of a crime. Kromphold, supra, 162 N.J. at 353. To hold otherwise, "every offense arguably would implicate aggravating factors merely by its commission, thereby eroding the basis for the gradation of offenses and the distinction between elements and aggravating circumstances." Ibid.

Count One of the indictment charged defendant with first-degree carjacking by having inflicted bodily injury on Abassi and/or purposely putting him in fear of immediate bodily injury by threatening the immediate use of a deadly weapon in committing the crime of carjacking. Count Two of the indictment charged defendant with first-degree robbery, not by inflicting injury upon Abassi, but by using force upon him and/or threatening immediate bodily injury to him and/or purposely putting him in fear of immediate bodily injury while armed with and/or threatening the immediate use of a deadly weapon. The judge found aggravating factor (2) in sentencing defendant on Counts One and Two "because [Abassi] was knocked out and to this day has been suffering from difficulty as a result." Because the seriousness of the harm inflicted on Abassi was included as an element of the offense of carjacking as charged in the indictment, the trial judge should not have included that fact as an aggravating factor for sentencing purposes on that conviction.

Although the record discloses that Abassi was struck on the head with a hard object and punched three or four times in the face, causing him to momentarily blackout, the record is devoid of any evidence that the injuries caused by the assault were permanent or otherwise serious in nature. Abassi received treatment at the hospital emergency room and was released several hours later, after which he attempted to assist the police in locating and apprehending defendant. To the contrary, see State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992), where we affirmed the trial judge's consideration of the nature and extent of the victim's injuries when sentencing the defendant on a conviction of aggravated assault, the victim having suffered multiplicity of serious injuries, some of which were permanently disabling, to where the victim could not work and walked with a decided limp at the time of sentencing. Such is not the case here. Accordingly, we vacate the sentence on Count One, and remand that count to the trial court for re-sentencing. Because we have vacated the sentences imposed on Counts One and Three, and vacated the imposition of consecutive sentences Counts Two and Four, we determine that justice would best be served by remanding all counts to the trial court for re-sentencing, keeping in mind the overall fairness of the aggregate sentence.

We affirm the convictions, and remand to the trial court for re-sentencing in accordance with this opinion.


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