February 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSHUA GAUDETTE, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARIO VEGA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-05-1295.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2009
Before Judges Axelrad, Parrillo and Lihotz.
Tried jointly by a jury, defendants Joshua Gaudette and Mario Vega were found guilty of armed robbery, N.J.S.A. 2C:15-1; armed burglary, N.J.S.A. 2C:18-2; conspiracy to commit these crimes, N.J.S.A. 2C:5-2; criminal restraint, N.J.S.A. 2C:13-2(a); possession of a handgun without obtaining a permit to carry a weapon, N.J.S.A. 2C:39-5(b); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and possession of a weapon by certain persons, N.J.S.A. 2C:39-7(b).*fn1 Each defendant was sentenced to an aggregate thirty-year prison term, subject to a twenty-two year parole bar. On their appeals, which we have consolidated for purposes of argument, Vega alone contends that the trials should have been severed,*fn2 evidence should have been suppressed, testimony regarding Vega's obstruction-of- justice arrest prejudiced the jury, and the court erred in denying his motion for judgment of acquittal. Gaudette contends that "new evidence" of his alleged attempt to hire someone to murder a victim requires a new trial, and testimony on what led police to arrest Gaudette amounted to hearsay that requires a new trial. And both defendants argue that the prosecutor made a number of comments during summation that require a new trial and that the court erred in its jury charge. Both defendants also contend that their sentences were excessive. Based on our review of the record and applicable law, we affirm both judgments in all respects, save for the sentences, which we remand for findings as to the consecutive nature thereof, and, as to Vega, for clarification as to whether his sentence includes an extended term and whether the offenses of conspiracy to commit armed robbery and possession of a firearm with an unlawful purpose merge with the first-degree armed robbery and second-degree certain-persons-not-to-have-a-weapon offenses, respectively.
The underlying incident involved a home invasion perpetrated by two masked intruders on the evening of February 12, 2004. According to the State's proofs, at the time, Robert Palagonia was at home with his two daughters, Jessica, seventeen years old, and eleven-year old Nicolette. Robert had fallen asleep on the couch in the living room, while upstairs Jessica watched television in her bedroom, and Nicolette slept in hers. At about 11:00 p.m., Robert awoke to find a man standing over him, holding a gun and ordering "Don't move, mother fucker." When the intruder pushed the gun towards Robert's face, Robert grabbed the gun, and they began to struggle, wrestling "over the couches [and], tables," and "wound up in the corner fighting." Robert lost grip of the gun, and the assailant hit Robert in the head about seven times.
Meanwhile, the other intruder had gone upstairs and knocked on Jessica's bedroom door. Believing it was her dad, she got out of bed and opened the door, only to be confronted by a man wearing a dark mask, who grabbed her by the shoulders, threw her into the bathroom, and shut the door. Inside the bathroom the man told Jessica to sit down, but she resisted, and when she screamed for help, he threatened to kill her and forced her to the floor. He then tried to gag her with a t-shirt, but was unsuccessful, so he took a sock from a nearby hamper and tied her hands behind her. The commotion triggered an asthma attack, which inhibited Jessica's ability to breathe comfortably, and, therefore, she stopped struggling.
Meanwhile, Nicolette had awoken when she heard her dad yelling her name and ran towards the stairs. As she passed the bathroom, she heard Jessica's cries for "help." Nicolette ran down the steps and saw a masked man hitting her dad in the back of the head. At the same time, the assailant demanded "Where's the money?" as he pointed the gun at Robert and pulled the trigger. However, no bullet discharged. Robert yelled for Nicolette to get help, and she ran across the street to Tracy Matarazzo's house. The man turned to try and stop Nicolette, but Robert grabbed him, only to be pulled across the floor and hit in the head so hard that he nearly passed out. When the assailant turned to run out the door, Robert managed to grab hold of him, but only briefly, as the man ultimately escaped through the front door.
Hearing no response when he called Jessica's name, Robert walked up the stairs where he heard a "mumble" coming from the bathroom. Robert opened the door and turned on the light, at which time another masked man ran towards him, pushed him aside, and rushed down the steps. Jessica, who was then standing in the corner of the bathroom by the sink, looked "alright," so Robert turned to run after the second intruder. He chased the man outside, yelling for Nicolette and Matarazzo, who were crossing the street, to call the police, which, unbeknownst to Robert, Jessica was in the process of doing. He then jumped into the truck and followed the man for a few blocks until he lost sight of him.
When he returned home, Robert stood outside with Nicolette, Jessica and Matarazzo awaiting the police. His head was bleeding, his face was swollen and his shirt was "soaked in blood." Detective Sergeant James Clayton and Sergeant Trocchio of the Neptune City Police Department arrived around 11:00 p.m. and observed the furniture in the living room was out of order, and blood was on the floor. Clayton saw "numerous impressions" of foot prints on the floor. Using his own foot for comparison, Clayton estimated that one of the impressions, which was on a bloody piece of paper, was of a shoe sized nine or ten inches.*fn3
After calling for medical assistance for Robert and securing the house, Clayton interviewed Robert and Jessica, who described the two intruders. Robert characterized his attacker (the first man) as between five feet six inches and five feet eight inches tall with "a stocky build," and Puerto Rican, who spoke with a slight Spanish accent. He wore a black ski mask and black or dark clothing. Although Robert did not describe Jessica's attacker (the second man), his daughter did. She said that he was a "black male" about six feet three inches tall with shoulders that were not as wide as Clayton's. Jessica described his jacket as being "thin, black, shiny nylon material with square shapes sewn in it, sort of like a down coat but not as thick." The only facial feature she saw, however, were his eyes, which she described as having a large white area and dark bushy eyebrows. Clayton, recalling he knew a person who fit Jessica's description, turned to Detective Quagliato and said "[i]t sounds like Joshua Gaudette." Clayton had known Gaudette for some time and that his distinguishing characteristic was his bushy eyebrows.
Two days later, on February 14, 2004, Clayton again met with Robert and Jessica. Jessica's description of her attacker was consistent with her first, but, this time, Robert recalled knowing a man named "Josh" whose eyes matched Jessica's description. Robert had met "Josh," whom he identified in court as Gaudette, through Mike Helgeland, a former employee of Robert's construction company and a son of Robert's friends, the Scanapicos. According to Robert, he paid his employees every Friday with money that he kept in a safe in an upstairs bedroom of his house, and Helgeland had been in the house five or six times, once apparently with Josh.
Helgeland also apparently led Clayton to Russell Palmeri, another former employee of Robert's business, who reported that he had seen Gaudette at about 11:00 p.m. on February 12, 2004. Gaudette appeared sweaty at that time and was wearing a dark-colored jumpsuit and no jacket. Palmeri agreed to give him a ride to Bradley Beach, and, along the way, Gaudette said he had been in a fight and punched someone in the face.
Palmeri, in turn, led Clayton to Alicia Catananzi and Andrea Milano, whom Clayton interviewed on February 17, 2004 at Milano's apartment in Bradley Beach. Catananzi reported that, at about 12:45 a.m. on February 13, 2004, she saw Gaudette, who asked her for a ride to Long Branch, and he was wearing "a black jacket or hoody, jeans and sneakers." During the interview, Clayton asked Milano about Gaudette's girlfriend, which prompted Milano to call Monica Figueroa, who lived in Keansburg. As a result of that call, Clayton requested the Keansburg Police Department to go to Figueroa's house "[t]o pick up Mr. Gaudette on the warrant that we had issued for him."
Detective Wayne Davis and two other Keansburg Police officers were dispatched to Figueroa's house. After knocking on the door and identifying himself, Davis heard voices inside, but no one answered the door. He continued knocking, and, about twenty minutes later, Figueroa answered. Davis asked her if Josh Gaudette was there, and she said she was the only one home. Disbelieving her, Davis asked more questions while the two other officers stepped inside the house. Soon, a man, later identified as Mario Vega, stepped out of the bathroom. Davis again asked Figueroa if anyone else was there, and she said no. Then another man, later identified as Michael Figueroa, walked out of another room. At that point, Davis went inside a bedroom, where he saw Gaudette lying on a bed with his hands behind his head.
Gaudette, Vega and Michael Figueroa were all arrested for obstruction of justice*fn4 and transported to Keansburg Police Department headquarters where Gaudette was placed in a cell block and the other two in a holding cell. When Clayton arrived later that day to arrest Gaudette, he first spoke to Vega, whom he believed matched Robert's description of his attacker. In fact, Vega spoke with a slight Hispanic accent and wore boots that not only matched the footprints at the crime scene, but appeared to have small spots of dried blood on them, as well. When Clayton asked for Vega's boots because he suspected Vega burglarized Palagonia's house, Vega kicked them off and said, "You want my boots, take them." Clayton retrieved them.
Forensic analysis later determined that one stain contained Robert's DNA.
That night, Nicole Scalzo, Gaudette's girlfriend at the time, contacted the Neptune City Police Department and reported that, on February 12, 2004, Gaudette was home with her until about 9:00 p.m. He left after telling her that he was going out with his aunt, because his grandmother was sick. At that time, he was wearing jeans, a white t-shirt and a jacket that was "black, shiny, nylon type with diamond stitching on it."
He returned home at about 12:40 a.m. on February 13, 2004. Although half asleep, Scalzo did not believe that he had on his jacket. On the morning of February 17, 2004, Gaudette dropped Scalzo off at work and took her car. At about 6:00 p.m. she received a call from a woman named Monica, who said that Scalzo's car was in Keansburg. Scalzo picked up her car after work and contacted Clayton, to whom she gave a statement as well as a jacket that was in the back of her car. Jessica and Robert identified the jacket as looking like the one that Jessica's attacker had worn during the burglary.
The next day, February 18, 2004, while being transported from Keansburg to Neptune Police Headquarters, Gaudette inquired of Neptune Police Detective Matthew Quagliato: "Hey, did you guys get the other guy yet?" Upon arrival, Gaudette was advised of his rights, after which he denied committing the burglary and claimed that five people, including his girlfriend, her father and two cousins, would say that he was home all night on February 12, 2004.*fn5
Over one year later, on May 6, 2005, Robert and Jessica gave their first written statement to police. Robert's description of his assailant was similar to the one he gave Clayton on the night of the incident, namely that the man was Hispanic, had tan skin, was "bigger than me [Robert], about 5'8", stocky[, and h]e was wearing a black shirt, black pants, [and a] jacket." When showed a picture, presumably of Vega, Robert could not identify him as his assailant.
Jessica's description of her attacker was also similar to her earlier depiction. In her statement, she related: "He was wearing a ski mask with the eyes cut out. Black jacket . . . like, a flight jacket, thin flight jacket and dark jeans." The jacket had "little squares, like, stitched in." She identified the jacket that Scalzo gave the police as looking like the one that her assailant wore. She described him as tall, about siX feet, with a "nice" build and "wide shoulders," weighing about 220 pounds. He had "big eyes," and "all I [Jessica] saw when I [she] looked at him was the whites of his eyes. He had long eyelashes and, like, I remember his eyebrows, thick eyebrows."
At trial, neither Robert nor Jessica was able to identify Gaudette and Vega as the perpetrators given the fact that the intruders wore masks. Robert's trial description of the assailants differed slightly from the description he gave Clayton on the night of the attack. Robert testified that his attacker was between five feet seven to ten inches tall with brown eyes, although he had never before given a description of the man's eye color. But consistent with what he had told Clayton, Robert testified that the man wore a black jacket, pants and ski mask. Robert also testified that Jessica's assailant, whom he had never before described, was tall and had big eyes and bushy eyebrows. He wore white sneakers, dark pants, a ski mask and a black jacket that had "square boxes over it."
Nicolette also testified at trial. She had not been interviewed on the night of the incident because of her age and the fact that she was frightened. The description of what she observed during the home invasion was consistent with her father's and sister's account. As for the assailants, she recalled only that they both wore dark clothes and one was tall while the other, stocky.
For the first time, on appeal, Vega contends that the trial court should have ordered separate trials because (1) Gaudette's out-of-court statement to the police asking "Hey, did you guys get the other guy yet?" inculpated Gaudette and another person, and (2) Vega's and Gaudette's defenses were antagonistic and mutually exclusive. We disagree.
Rule 3:15-2(b) authorizes a court, upon motion by either party, to order separate trials when "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation." A court considers the motion in light of the "general preference to try co-defendants jointly." State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992).
Here, Vega never filed a motion to sever. Thus, we review his belated claim under the plain error standard, Rule 2:10-2, that is, whether the court's failure to sua sponte order separate trials is error that was "clearly capable of producing an unjust result." Ibid. We discern no error, much less plain error, in having tried defendants jointly.
Simply stated, Gaudette's out-of-court statement did not imply that he and Vega committed the burglary, especially given the fact that Gaudette could have learned from newspaper reporting or police questioning that the incident involved two suspects. Moreover, Vega's and Gaudette's defenses were not antagonistic or mutually exclusive. During summation, both defense attorneys identically argued mistaken identity and shoddy police work. Thus, Vega's challenge is baseless, especially considering the evidence directly implicated him, as the blood on his boot tested positive for Robert's DNA.
Vega argues that the blood found on his boots should have been suppressed as the fruit of an illegal search and arrest. He did not raise this argument below, nor did he file the requisite motion to suppress the evidence, and, therefore, he is precluded from raising the issue on direct appeal. R. 3:5-7(f).
Rule 3:5-7(f) provides: "If a timely motion is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained."
Thus, while he may claim in a petition for post-conviction relief that his trial counsel was ineffective in failing to file a suppression motion, Vega may not now challenge the admission of evidence of his boot, and the blood thereon, on direct appeal. See State v. Johnson, 365 N.J. Super. 27, 33-34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004).
In any event, Vega's challenge lacks substantive merit. Defendant offers no facts to support a finding that his turning the boots over to Clayton was not done knowingly and voluntarily. And nothing suggests that his precedent arrest was unlawful.
Gaudette claims reversible error in the State's failure to provide him "discovery" about his alleged attempt to have the victim/witness (Robert Palagonia) murdered, as that information was supposedly relevant to witness bias. His motion for a new trial on this ground was denied, and we concur in that determination.
By way of background, on the second day of trial, January 24, 2006, during cross-examination, Gaudette's counsel asked Robert if he had spoken to anyone about the case, at which time the witness turned to the judge and said he did not know if he could answer the question. Counsel was instructed to move on to the next question, and the matter was addressed during the next break, at which time the prosecutor reported that "we received information that Joshua Gaudette attempted to contract to have Mr. Palagonia murdered," and someone from the Prosecutor's Office and/or the police department conveyed that to Robert. Having heard this for the first time, counsel requested the opportunity to question Robert, outside the presence of the jury, on what he was told and who told him, and then to question the people who conveyed the information to Robert. The request was denied at first, as was counsel's motion for a mistrial. The next day, however, the court held a N.J.R.E. 104 hearing, at which Robert testified.
Robert explained that around Friday of the previous week, he was contacted by phone and asked to go to the Neptune City Police Station, where Clayton and another individual from the Prosecutor's Office told him that "they caught some guy" and that "Josh" had ordered a contract for Robert's murder. When asked by Gaudette's counsel on cross-examination whether that information made him "feel a need to testify differently from how you've already given statements to police officers before," Robert answered: "No." Counsel also inquired: "Do you feel like you now have to get Josh," to which Robert replied: "No." But when counsel asked to further inquire into when and how the State learned about the alleged contract, the court declined the request, reasoning the matter immaterial.
At defendant's motion for a new trial predicated on this very issue, framed as a "discovery" violation, the prosecutor offered additional information. She said that, after Robert was initially scheduled to testify on January 18 and 19, but before his actual testimony, the State received information that Gaudette had hired someone to murder Robert. Having an obligation, the prosecutor conveyed that information to Robert the same day she learned of it. The prosecutor also advised the court. In denying defendant's motion for a new trial, the judge reasoned that evidence of the alleged contract would have irreparably prejudiced the jury, as would information that Gaudette was in custody, and that he was "absolutely convinced" that the jury rendered an appropriate verdict. We agree.
The information about the alleged murder "contract" was neither exculpatory, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197 10 L.Ed. 2d 215, 219 (1963), nor relevant to any fact in issue, N.J.R.E. 401, much less material to guilt or punishment. Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1197, 10 L.Ed. 2d at 219. On the other hand, such evidence was highly prejudicial to Gaudette and its admission likely would have adversely affected the jury's ability to render a fair and impartial decision. Thus, further inquiry into the matter was properly precluded.
As for the need to ascertain witness bias or whether the State attempted to taint a key witness, suffice it to say, defendant offers no proof whatsoever of either. Robert specifically denied that knowledge of the alleged contract influenced his testimony in any way. Indeed, Robert never identified Gaudette either in- or out-of-court. His descriptions of co-defendant Vega on the night of the incident, in his written statement one year later and in his trial testimony, were essentially similar in all significant respects. And, although he briefly described Gaudette for the first time at trial, that depiction did not differ from Jessica's. In any event, Robert was thoroughly cross-examined on the matter. In sum, we find no error in the denial of the motions for mistrial and a new trial based on the State's so-called "discovery" violation.
Gaudette contends for the first time, on appeal, that Clayton's and Davis' testimony on what led to Gaudette's arrest amounted to hearsay that implicitly informed the jury that police had superior knowledge of defendant's guilt. Specifically, Clayton testified that, while interviewing Catananzi and Milano, he asked Milano if she knew where Gaudette's girlfriend lived, and she made a phone call to Monica Figueroa. As a result of that phone call, Clayton contacted the Keansburg Police Department and asked them to go to Figueroa's house at 96 Highland Boulevard. Davis testified that, on February 17, 2006, he received information from Dispatch that a "suspect" who had been involved in a "home invasion," and who "they [had] identified as Mr. Gaudette, had made a phone call from 96 Highland Boulevard" in Keansburg. We find no plain error in the admission of this testimony.
In State v. Bankston, 63 N.J. 263, 271 (1973), our Court held that "[w]hen the logical implication to be drawn from the [police] testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." To avoid hearsay, but to rebut a suggestion of arbitrary police action, police may use the phrase "based on information received" to explain their actions, but only if doing so does not imply that the defendant has been implicated in the crime by an unknown person. State v. Branch, 182 N.J. 338, 352 (2005).
Here, Clayton testified about Milano's call to Figueroa, and Davis testified about the dispatch call reporting that Gaudette had made a phone call from Figueroa's house, to explain how the police came to locate Gaudette. Their purpose was not to imply they had superior knowledge, outside the record, that incriminated defendant. In any event, the likely source of the information from Dispatch, i.e., Clayton, testified and was cross-examined at defendant's trial, thereby obviating Bankston's Confrontation Clause concern. See U.S. Const. amend, VI; N.J. Const. art. 1, § 10; State v. Kemp, 195 N.J. 136, 152-56 (2008). In this regard, with the exception of Andrea Milano, everyone whom Clayton interviewed -- Robert and Jessica Palagonia, Russell Palmeri, Alicia Catananzi and Tracy Matarazzo -- testified at trial and were subject to cross-examination. As for Milano, Clayton simply referred to her placing a phone call to Monica Figueroa, in his presence, and we perceive no error in such reference, especially since Gaudette's girlfriend, Scalzo, testified at trial. Moreover, Davis, who testified about the pre-arrest dispatch call, obviously obtained his information from Detective Clayton, who, as noted, testified and was cross-examined. Therefore, even if Davis' testimony about the dispatch call implicated concerns interdicted by Bankston, the totality of the circumstances presented leads to the conclusion that the admission of the belatedly challenged testimony was harmless. State v. Macon, 57 N.J. 325, 336 (1971).
Vega contends, again for the first time on appeal, that he was prejudiced by the jury's hearing that the Keansburg Police arrested him at Figueroa's house on an obstruction-of-justice charge. The arrest, he says, allowed the jury to infer guilt here. We disagree.
In the first place, the jury did not learn of the obstruction of justice charge via the State's questioning. The prosecutor only asked Davis, the arresting officer, whether Vega was arrested and transported to the Keansburg Police Department. It was Vega's attorney who on cross-examination asked Davis about the arrest. Vega's attorney specifically inquired: "And you brought him in for obstructing administration of justice?" Davis agreed, then defense counsel asked if the basis for the charge was that Vega did not answer Figueroa's door while Davis knocked for roughly twenty minutes. Davis said that was also correct. Shortly after that, the court expressly instructed the jury that the obstruction-of-justice charge "really doesn't have anything to do with this case" and could not be used as a basis to infer guilt.
Clearly, evidence of Vega's arrest was not offered to prove criminal disposition, but simply to explain how Clayton obtained Vega's boots. And defense counsel's additional inquiry into the specifics of the charge for which Vega had been arrested is certainly understandable, given the prospect of jury speculation over a far more serious offense. In any event, whatever harm may have accrued by virtue of this reference was mitigated, if not entirely eliminated, by the court's prompt curative instruction to the jury that the arrest was simply not relevant and could not be used to infer guilt.
Vega contends that the trial court erred in denying his motion for judgment of acquittal at the close of the trial. We disagree.
[T]he broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. R. 3:7-6. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed. 2d 396 (1962).
[State v. Reyes, 50 N.J. 454, 458-59 (1967).]
Vega first argues that the court should have dismissed the charge of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), because there was no proof that Vega purchased the alleged weapon in New Jersey, citing State v. Cuccio, 350 N.J. Super. 248, 252 (App. Div.), certif. denied, 174 N.J. 43 (2002).
There, we found that the trial court should have dismissed ten counts for receipt, purchase or acquisition of a handgun without a permit, contrary to N.J.S.A. 2C:39-10(a) and N.J.S.A. 2C:58-3(a), because there was no evidence that the defendant had purchased the weapon in New Jersey. Id. at 255.
We conclude that Cuccio is inapplicable here because Vega was not charged with violating N.J.S.A. 2C:39-10(a) and N.J.S.A. 2C:58-3(a). The question in Cuccio "was whether defendant had received the ten handguns in New Jersey so as to be subject to the purchase permit requirement of N.J.S.A. 2C:58-3(a)." 350 N.J. Super. at 256 (emphasis added). Here, in contrast, defendant Vega, who stipulated that he did not have a permit to carry a handgun, was charged with violating the regulatory requirement of N.J.S.A. 2C:58-4, which reads: "Any person who holds a valid permit to carry a handgun issued pursuant to this section shall be authorized to carry a handgun in all parts of this State, except as prohibited by section 2C:39-5[e]." (emphasis added). Accordingly, contrary to defendant's assertion, there was no requirement that the State prove defendant purchased the handgun within the State of New Jersey. The mere fact that defendant carried a concealed handgun in this State, without a permit to carry, constitutes the crime.
Vega next contends that "the other counts" should have been dismissed because none of the victims identified him; "[t]here was nothing reliable tying him to these crimes except for the fact that he knew Joshua Gaudette"; he gave no statement inculpating himself; Clayton gave inconsistent testimony; and none of his fingerprints were found at the crime scene. Of course, Vega ignores the damning evidence that directly linked him to the crime, namely, the victim's blood on his boot. Vega offered no explanation for how it got there, and he never denied that the boots were his. Nor did he claim that someone else had worn them. Thus, viewing the State's evidence in its entirety, we are satisfied that a reasonable jury could find guilt of the charges beyond a reasonable doubt.
Gaudette and Vega challenge a number of comments that the prosecutor made during summation, claiming that they warrant a new trial.
Prosecutors are given "considerable leeway" in summarizing their case to the jury. State v. Smith, 167 N.J. 158, 177 (2001). "Indeed, prosecutors . . . are expected to make vigorous and forceful closing arguments." State v. Frost, 158 N.J. 76, 82 (1999). However, "[t]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). To that end, prosecutors may not "make inaccurate legal or factual assertions" and must "confine their comments to evidence revealed during the trial and reasonable inferences" that can be drawn from the evidence. Smith, supra, 167 N.J. at 178.
We will reverse a conviction and order a new trial if we find that the prosecutor's failure to confine his or her summation to appropriate comments was "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. The Court in Smith, supra, explained that, to rise to the level of plain or reversible error and to warrant a new trial[,] the prosecutor's conduct must have been "'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999). In determining whether a prosecutor's actions were sufficiently egregious to warrant the reversal of a conviction, a reviewing court should take into account:
(1) whether defense counsel made timely and proper objections to the improper remarks;
(2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. [167 N.J. at 181-82.]
"Generally, if counsel did not object [to the remarks], the remarks will not be deemed prejudicial." State v. Josephs, 174 N.J. 44, 124 (2002). An exception exists if the remarks create plain error. R. 2:10-2. Measured by this standard, we do not find the challenged remarks, either singly or collectively, to warrant a new trial.
A. Gaudette's Challenges
Gaudette, joined by Vega, first complains of the following remark, which he contends inappropriately expressed the prosecutor's personal opinion of the matter:
Let's start with not who did it, let's start with what happened. What did people do? One person, two people? I tell you, ladies and gentlemen, with all conviction that I have proven to you beyond a reasonable doubt that there were two people.
Neither defendant objected below, and neither disputes that two individuals committed the crimes in question. Thus, while the prosecutor's use of the phrase "with all conviction" may have been inappropriate, the remark was harmless and certainly lacked the capacity to produce an unjust result.
Gaudette next complains, again for the first time, about three comments by the prosecutor, which he says mischaracterized his defense and improperly bolstered the witnesses' credibility. These comments were made while recounting, with the aid of crime-scene photos, the testimony about the burglary and assault. After reviewing what had happened to Jessica, the prosecutor said: "Do you think that they're lying [referring to the victims]?" and, referring to Jessica, "I got this peachy-keen idea I'm going to frame Joshua Gaudette." She made the following third comment while discussing what Nicolette and Matarazzo had witnessed: "They're [i.e., defendants] trying to make Mr. Palagonia into a big fat liar." No objection was voiced below.
We perceive nothing improper about these comments. "A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004). Here, the prosecutor neither vouched for the witnesses' credibility nor referred to matters outside the record. And, while the defense was not that the witnesses were lying, defendants both implicitly attacked the witnesses' credibility.
Third, Gaudette contends that, in the following three comments, the prosecutor personally vouched for the truth of the evidence:
You have Mr. Palagonia's blood on Mr. Vega's boot. There is no way it could have gotten there unless he was the robber.
[Referring to Clayton's testimony that Gaudette had told him that Gaudette was home all night] Clayton didn't miss a word. And Clayton read it directly off his police report so he would be accurate.
Robber number two was wearing a black coat with diamonds on 2/12. Gaudette was wearing a black coat with diamonds on 2/12, certainly when he came home at 12:40 in the morning after -- excuse me for being facetious -- visiting his sick grandmother.
Again, Gaudette did not object to any of these comments, and we find them all properly based on inferences reasonably drawn from the evidence. None of them suggested that the prosecutor was commenting on facts outside the record or personally vouching for the veracity of the State's proofs.
Fourth, Gaudette contends that the prosecutor employed a sarcastic tone in referring to him as the "innocent lad that he is"; to his "sick grandmother"; and to Jessica's "peachy keen" idea of framing him. We, once again, find nothing improper with these comments.
Last, Gaudette challenges, as "laced with sarcasm" and a personal request to convict, the prosecutor's final comment in her summation:
On all counts I submit to you that I've proven beyond a reasonable doubt that there was a conspiracy to commit armed robbery and armed burglary; that there was an armed robbery committed by these two. There was an armed burglary. The possession of the weapon. Possession of a weapon for an unlawful purpose, obviously. Criminal restraint. 17 year-old girl. And all I'm asking you to do, ladies and gentlemen, is get the other guy because, yes, they did it, and I would really like you to tell Mr. Gaudette that, yes, we got the other guy, too. They committed these crimes, ladies and gentlemen. And all I'm asking is that you find them guilty. Thank you.
Gaudette did not object, and we perceive no basis to have sustained an objection if one were made. The statement amounted to no more than zealous advocacy.
B. Vega's Challenges
Vega takes issue with the following statements by the prosecutor in summation, which he claims were not based on facts in evidence: [discussing the facts relating to the weapons charges] The gun misfires. The gun, since he took the actual gun, we can't say if it misfires and a bullet doesn't come out of the business end of it, because the magazine is out, some of them work like that. If the magazine isn't in, it won't send a bullet out.
GAUDETTE'S ATTORNEY: Objection.
VEGA'S ATTORNEY: Objection, Judge.
THE COURT: I'll permit it. Overruled. [Referring to a picture of the living room in reviewing the struggle between Robert and his attacker] Now you see here that they're struggling and there's fighting and clearly that boot has stepped in blood. Clearly this was on the table and got knocked off and papers fell off [of the table].
VEGA'S ATTORNEY: Objection, Judge, how is that clear?
THE COURT: Well, it's up to the jury to make that determination. If it was they can decide yes. If they decide no, they can decide no. They need not accept what the prosecutor says.
You have Mr. Palagonia's blood on Mr. Vega's boot. There is no way it could have gotten there unless he was the robber.
VEGA'S ATTORNEY: Objection.
THE PROSECUTOR: It's on the top and sides of the boot.
THE COURT: Objection is overruled. [Discussing Scalzo's testimony] Then she is confronted with -- because at best she is a reluctant witness, and it's, oh, yeah, he did have a coat. It looked like this on the way home when he came home that night at 12:40.
GAUDETTE'S ATTORNEY: Objection, Judge.
THE COURT: What is the objection?
GAUDETTE'S ATTORNEY: Mischaracterizing the evidence.
THE COURT: It's up to the jury to make the determination. [Discussing Gaudette's eye color and Jessica's testimony] Mr. Gaudette's attorney refers to his eyes as hazel. And they are. But what color are his eyes if we turn the lights off? What do you see? Do you have friends with hazel eyes? And do the eyes change depending on what they're wearing? Isn't that the interesting part of hazel eyes? If they're wearing blue or green, they're very hazel, greeny looking. They're wearing brown or black they're brown looking. You've all got friends who look like that.
We find nothing improper in any of these comments, as they were all based on evidence in the record and on common experience. The first comment related to Smentkowski's testimony that he retrieved the "front sight" of a weapon from Robert's house, and to Robert's testimony that his assailant pointed a gun at him and pulled the trigger, but no bullet discharged. The second comment involved a reasonable inference that, based on the pictures and testimony, the piece of paper with the bloody boot print was not a forgery, but authentic evidence that Robert had found in his house. Similarly, the third comment was a reasonable inference drawn from the evidence, since the police found Robert's blood on Vega's boot, and Vega offered no explanation for how it had gotten there. The reference to Scalzo as a reluctant witness was also a reasonable inference because she testified that she was Gaudette's girlfriend in February 2004. Finally, the way in which eye color seemingly changes with clothing color is a phenomena that is known from common experience. Thus, the prosecutor's suggestion that Gaudette's hazel eyes probably looked darker because he wore black was not improper.
Third, Vega complains, for the first time on appeal, that the prosecutor made two statements that "tend[ed] to denigrate" the defense. The first comment was made while the prosecutor discussed the bloody boot print on the paper. She said:
And defense counsel kind of said, hey, you know there are lots of boots out there. Absolutely right a lot of boots out there. But I think he was drawing a conclusion that on the 18th, Mr. Palagonia, what, knew that Mr. Vega got -- no, he didn't get arrested but he took his Timberline boots, he knew what size the guy was wearing? He got himself a pair of Timberline boots that were in good shape, good condition, then he did the bleeding thing again and then he put it [the bloody print] on here [the piece of paper] just a little bit. Not a real good job. And brought it into police headquarters. That's the argument they [defendants] put forward.
After that, the prosecutor twice referred to the defense as creating a "parallel universe."
We find that these comments merely demonstrated the implausibility of the defenses and were not impermissibly disparaging. There was no error in their iteration, let alone plain error.
Finally, Vega contends that the following comment was improper because it was based on the prosecutor's personal opinion, and because it suggested that the State was "at such a disadvantage" that it could not win under any circumstances:
[A]nd it's not fair when two masked men who walk into a house, beat the dickens out of someone, do what they do in this house, and then say, Oh, yeah, but you'll never be able to catch them because you can't look at their faces and identify them.
Vega did not object to this comment below. Although capable of playing on the jury's emotion, in the context of the entire summation, and the strong evidence against Vega, the comment did not amount to plain error. Cf. State v. Morton, 155 N.J. 383, 419 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001) (examining prosecutor's comment during summation in relation to the entire trial).
Gaudette and Vega each challenge the conspiratorial-liability charge as insufficient or defective, and they contend that the court erred in refusing to give a "false in one, false in all" charge. Gaudette further challenges the identification instruction; the accomplice-liability charge; and the armed-robbery charge. He also contends that the court erroneously told the jury that it had to decide defendants' guilt or innocence. Except for the first, the remaining challenges are all without merit, and may be disposed of briefly. R. 2:11-3(e)(2).
Defendants contend, for the first time on appeal, that the charge erroneously instructed the jury that Jessica and Robert had identified defendants, when, in fact, they never did so. To be sure, the judge incorrectly used the term "identification" to refer to the "descriptions" rendered by Robert and Jessica. But in assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005). So viewed, the inaccuracy was insignificant and certainly not capable of producing an unjust result. At the outset of its instructions, the court explicitly informed the jury that Robert and Jessica never made an in-court or out-of-court identification of the defendants, and the jury well understood both assailants were masked at the time of the incident. There being no "identification" evidence, there was no possibility for jury confusion.
Gaudette contends the accomplice-liability charge failed to adequately inform that an accomplice may be guilty of a crime of a lesser degree than that which the principal is guilty. We disagree.
N.J.S.A. 2C:2-6 imposes liability for another's crime on an accomplice. To be guilty of a crime as an accomplice, a defendant must have "act[ed] with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." State v. White, 98 N.J. 122, 129, 484 A.2d 691 (1984). Therefore, a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he "shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act." State v. Fair, 45 N.J. 77, 95, 211 A.2d 359 (1965). [State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993).]
When the State alleges that an accomplice committed a lesser degree or grade of an underlying offense than that which the principal allegedly committed, "the court has an obligation to 'carefully impart to the jury the distinctions between the specific intent required for the grades of the offense.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). Thus, in the context of armed robbery and robbery, a court must make clear to a jury that if it concludes that the accomplice had the purpose to commit a robbery, but not a robbery with a weapon, then it must find the accomplice guilty of robbery and not guilty of armed robbery. Weeks, supra, 107 N.J. at 404-05, 409-10. That is so even if the jury concludes that the principal is guilty of armed robbery. See ibid. To make this distinction clear, courts will often have to discuss the elements of accomplice liability in relation to the facts of the case. State v. Savage, 172 N.J. 374, 389 (2002).
Here, contrary to Gaudette's contention, the court's instruction sufficiently informed the jury of the State's allegation that both defendants were liable; made clear that, as an accomplice, Gaudette could be guilty of robbery and burglary even if Vega was guilty of armed robbery and armed burglary; and mirrored the Model Charge on accomplice liability. Indeed, at the outset of its accomplice charge, the court twice mentioned that an accomplice may be guilty of a lesser-degree crime than that which the principal is guilty. The court then went on to explain the differing degrees of culpability, using language nearly identical to that of the Model Jury Charge:
If you find the defendant guilty of the specific charges, then you need not consider any lesser charges. However, if you find a defendant not guilty of acting as an accomplice of the other on a specific crime charged, then you should consider whether the defendant did act as an accomplice of the other, but with a purpose of promoting or facilitating, [the] commission of some lesser offense than the actual crime charged. What that means is armed robbery, the lesser offense is robbery. Armed burglary, the lesser offense is burglary.
So you may find one guilty of the armed robbery. You may find that the other was not an accomplice on the armed robbery, but you should consider whether or not he was an accomplice in regard to a robbery. The same applies to armed burglary and burglary.
Although recognize that two or more persons may participate in the commission of an offense, but each may participate therein for a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent upon his own state of mind, not anyone else's. Guided by these legal principles, if you have found the defendant is not guilty of the specific crime charged, you should then consider whether the defendant is guilty or not guilty as an accomplice to lesser charges of either burglary or robbery. I gave you those elements. In considering whether the defendant is guilty or not guilty as [an] accomplice on the lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind, and alignment of responsibility of each person is dependent on his own state of mind and no one else.
Therefore, in order to find the lesser included offense of either robbery or burglary, the State must prove those same elements to you. That's [sic] the other person committed the crime of armed robbery or armed burglary as alleged in the indictment, or the lesser included offense of robbery or burglary. That this defendant solicited that other person to commit the lesser included offense of either burglary or robbery, and did aid or agree to aid, attempt to aid that person in planning or soliciting the lesser included offense either of robbery or burglary. That this defendant's purpose was to promote or facilitate the commission of that lesser included offense; that he possessed the criminal state of mind as required for the commission of the burglary, or the robbery.
There was no error in this instruction.
Defendants contend, both for the first time on appeal, that the court's armed-robbery charge did not contain an instruction on attempted theft or on attempt in general. We disagree. There was no error, much less plain error, in the armed-robbery instruction.
In the first place, the court explained "attempt" in the context of the "serious-bodily-injury" element of robbery. Moreover, contrary to defendant's assertion, the court did instruct the jury that one can commit an armed robbery, or a robbery, not only by committing a theft, but by attempting to commit a theft:
A person is guilty of robbery . . . if in the course of committing a theft he knowingly inflicts bodily injury or uses force upon another or threatens another with or purposely puts that person in fear of immediate bodily injury. These are the elements that the State has to prove in regards to robbery.
One, defendant was in the course of committing a theft.
Two, while in the course of committing that theft, defendant either knowingly inflicted bodily injury or used force upon another person or threatened another person with or purposely put that person in fear of immediate bodily injury. As I've said the State most [sic] prove beyond a reasonable doubt [that] defendant was in the course of committing a theft. In this connection you are advised that an act is considered to be in the course of committing a theft if it occurs in an attempt to commit the theft during the commission of the theft itself, or in immediate flight after the attempt or commission.
Given the adequacy both of the "attempt" definition and of the explanation that an attempted theft satisfied the theft element of robbery, there was no need to further explain "attempt" in any greater detail nor to provide an attempted armed robbery charge, largely because the facts did not support such an instruction.
Defendants contend, for the first time on appeal, that the court's reference, twice during the charge and once during the recharge, to the jury's duty to decide defendants' "guilt or innocence" had the effect of reducing the State's burden to prove each element beyond a reasonable doubt. To be sure, we have previously instructed trial courts to avoid such language. State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003). We have also made clear, however, that use of the phrase in isolation does not automatically warrant a new trial. Ibid.; see also State v. Vasquez, 374 N.J. Super. 252, 265 (App. Div. 2005).
So too here. The charge, read as a whole, adequately instructed the jury that it had to decide guilt beyond a reasonable doubt. There were numerous (thirty-nine) statements in the charge specifying the State's burden of proving crimes beyond a reasonable doubt, compared to the fleeting, isolated references to the term "innocence." Clearly, there was no plain error in communicating to the jury the correct burden of proof.
Gaudette and Vega challenge the court's failure to give a "false in one, false in all" charge and contend that the evidence provided a basis for the charge. We disagree.
During the charge conference, Vega requested the "false in one, false in all" charge, and the court declined to give it, explaining:
Really is nothing that is so abusive about anything that somebody said that they change their story. I find those [inconsistencies in witnesses' testimony] are rather minimal modifications of what they said at one time instead of another time so I'll deny.
The court, however, did give the Model Jury Charge on prior inconsistent statements, citing conflicts in the testimonies of Robert, Clayton, Catananzi and Scalzo.
A court may give the charge "when a witness intentionally testifies falsely as to some material fact." State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div. 1960). The principle-"false in one, false in all"--"is not a mandatory rule of evidence, but rather a presumable inference that a jury [or judge sitting without a jury] may or may not draw when convinced that an attempt has been made to mislead them by a witness in some material respect." Ibid. (quoting State v. Guida, 118 N.J.L. 289, 297 (Sup. Ct. 1937), aff'd 119 N.J.L. 464 (E. & A. 1938)).
Here, there was no proof of intentionally false testimony. On the contrary, the inconsistencies cited by defendants*fn6 did not relate to material facts and, therefore, were adequately covered by the court's instruction on inconsistent statements and credibility in general. There was, therefore, no error in not charging "false in one, false in all."
Both defendants challenge the court's conspiratorial liability charge essentially on the basis that the judge did not refer to the specific crimes to which conspiratorial liability applied and did not limit its application to the substantive crimes which the State alleged defendants conspired to commit, namely armed robbery and armed burglary.
The court's conspiracy charge basically mirrored the Model Jury Charge in all respects but one. It did not contain the first paragraph of the Model Charge, which reads:
Count [insert] of the indictment charges the defendant with the crime of [insert]. The State does not allege that the defendant committed the crime of [insert] personally, but rather that (he/she) is legally accountable for that crime even though it was committed by another. More specifically, the State alleges that the crime of [insert] was committed by [insert], and that the defendant is legally accountable for the crime of [insert] committed by [insert] because the defendant and [insert] allegedly conspired together to commit that crime. It is therefore necessary that I instruct you as to both the crime of [insert] and the law of conspiracy.
(HERE REFER TO THE MODEL CHARGE FOR THE PARTICULAR CRIME) [Model Jury Charge on Conspiracy Vicarious Liability.]
Instead, the court referred generically to the "crimes" for which each defendant was allegedly responsible either because he committed them himself, or his co-conspirator committed them.
We do not find the challenged omission to be reversible error. The court otherwise adequately instructed on the relevant principles and essential elements of conspiratorial liability. Contrary to defendant Vega's contentions, the charge did not "presuppose there was a conspiracy," and, indeed, specifically charged that each defendant and each crime charged had to be treated separately and that the State had the burden of proving guilt beyond a reasonable doubt. To the extent defendants challenge the propriety of charging conspiracy at all, suffice it to say, the State charged defendants with conspiracy, and our jurisprudence recognizes "conspiracy" as a valid theory of vicarious criminal liability, as a legitimate basis for holding one accountable for the acts of another. State v. Bridges, 133 N.J. 447, 466-67 (1993). Furthermore, the facts warranted the charge, there being ample evidence that the substantive crimes charged were all committed in relation to the broader conspiratorial scheme to rob the Palagonia household. Accordingly, we do not view the court's initial failure to relate the theory to specific crimes as capable of leading to a verdict the jury would otherwise not have reached.*fn7
As to whether application of the conspiracy theory should have been limited only to those crimes for which the State expressly alleged a conspiracy to commit, suffice it to say, we know of no such limitation in the law. On the contrary, a defendant may be convicted on a conspiracy theory even when the indictment does not specifically include a conspiracy count, so long as there is a reasonable basis in the evidence. See State v. Le Furge, 101 N.J. 404, 413 (1986). We perceive no constitutional deprivation of notice in such an instance where, as here, the indictment sufficiently informs defendant of the charges against him so that he may adequately prepare a defense and is sufficiently specific to preclude a jury from considering an offense that the grand jury did not consider. Here, defendants may not legitimately claim surprise by the conspiracy instruction to the jury. The facts demonstrated that Vega and Gaudette acted in concert to rob the Palagonia residence, and, indeed, the grand jury indicted them for the crime of conspiracy to commit armed robbery and armed burglary as well as the underlying substantive offenses, of which a petit jury convicted them. Clearly, the conspiracy alleged to commit the armed robbery necessarily embraced and contemplated all acts occurring as a natural consequence and a reasonably foreseeable risk of the conspiracy, including the criminal restraint otherwise personal to Gaudette, and the weapons offenses otherwise personal to Vega. Accordingly, we find no reversible error in the court's conspiratorial liability instruction.
Defendants challenge their sentences as manifestly excessive. Both received thirty-year terms, consisting of twenty-year terms with an 85% parole bar for armed robbery and consecutive ten-year terms with a five-year parole bar for their certain persons not to have a weapon convictions.*fn8
A sentence should be disturbed only when the trial court failed to follow the sentencing guidelines, when the aggravating and mitigating factors are not supported by the evidence, or when application of the sentencing guidelines renders a sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). A sentence will not be disturbed unless the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 363-64.
The only contention worthy of discussion concerns the consecutive feature of both sentences. In imposing a consecutive term on Gaudette, the judge mentioned that this defendant's constructive possession of a weapon was a separate offense. As to Vega, the judge stated that the law regarding weapons is strict and the Legislature "is very much concerned about people having guns," although it is unclear whether this was the reason for imposing a consecutive term on this defendant.
"Under our sentencing scheme, there is no presumption in favor of concurrent sentences . . . ." State v. Abdullah, 184 N.J. 497, 513 (2005). The decision to set consecutive sentences is within the trial court's discretion. Ibid.;
N.J.S.A. 2C:44-5(a). In exercising that discretion, the trial court is guided by the Yarbough*fn9 criteria. State v. Miller, 108 N.J. 112, 122 (1987). Those criteria are as follows:
(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 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; and
(6) there should be an overall outer limit on the accumulation 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 from criteria 3(e) and 6).]*fn10
Defendants contend that the crimes were committed as part of a single episode and that "[w]here the offenses are closely related, it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively, especially where the second offense did not pose an additional risk to the victim." State v. Miller, 108 N.J. 112, 122 (1987). Here, the court imposed maximum consecutive sentences on the armed robbery and certain persons not to have weapons convictions.
We are satisfied that in imposing consecutive terms on both defendants, the court did not consider all of the Yarbough factors and did not otherwise adequately explain its reasons. Moreover, those that it did rely on, i.e., the serious and separate nature of the weapons offense, already account for the second-degree gradation of the crime and for elevating robbery to an armed robbery, see Yarbough, supra, 100 N.J. at 645, and, as such, constitute prohibited double-counting of factors. We are, therefore, constrained to remand the matter for resentencing. On remand, as to defendant Vega, the court should also clarify whether it is imposing an extended term and further clarify the discrepancies between the hearing transcript and the judgment of conviction regarding whether the conspiracy count merged with the armed robbery count and whether the possession of a weapon for an unlawful purpose count merged with that of the certain-persons-not-to-have-a-weapon count.
We have considered each of the remaining issues raised by defendants, either through counsel or pro se, and are satisfied none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Except for remands for resentencing, the judgments of conviction are affirmed in all other respects.