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State of New Jersey v. Keith Mc Bride

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 23, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEITH MC BRIDE, A/K/A BRIAN ANDERSON, KEITH M. MC BRIDE, KEITH MC BRIDGE, AND KAISHAWN WILLIAMS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 07-01-0159 and 09-12-2112.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 16, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Defendant, Keith McBride, was charged with a litany of offenses including attempted murder, robbery, and unlawful possession of a weapon. Defendant was convicted, under Indictment 09-12-02112, of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-a (Count 3); armed robbery, N.J.S.A. 2C:15-1 (Count 4); theft of an automobile, N.J.S.A. 2C:20-3 (Count 6); felony murder, N.J.S.A. 2C:11-3a(3) (Count 7); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count 8); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count 9); two counts of hindering apprehension, N.J.S.A. 2C:29-3a(3) (Counts 10 and 11); and two counts of disturbing human remains, N.J.S.A. 2C:22-1a(1) and 1b (Counts 12 and 13). Under Indictment 07-01-00159, for which he was tried separately, defendant was convicted of certain persons not to have weapons, N.J.S.A. 2C:39-7b.

He was sentenced to an aggregate term of thirty years imprisonment, to be served without parole for the convictions arising from Indictment 09-12-02112. For the convictions arising under Indictment 07-01-00159, defendant was sentenced to twenty years imprisonment, with a ten-year period of parole ineligibility, to be served consecutive to the thirty-year term imposed on Indictment 09-12-02112.

Defendant appeals his conviction and sentence, alleging that prosecutorial misconduct and trial court errors deprived him of a fair trial, and challenging the propriety of his sentence. We affirm defendant's conviction but remand for correction of the judgment of conviction (JOC) to merge the conspiracy conviction with the robbery conviction, and the court's reconsideration of the imposition of consecutive sentences.

At trial, the State presented the following evidence to the jury. After work on October 19, 2006, the victim, Robert Funderberk, went with friends to a restaurant in Rahway. He later drove his friends home and then drove to Brother's Bistro in Carteret, where he encountered co-defendant, Janean Owens, and her friend, Timisha Sanford. Owens knew the victim and sat with him at the bar and had a drink.

The bar closed at 2:00 a.m., at which time Sanford left the bar without Owens. As Sanford walked from the bar, the victim pulled up in his truck with Owens, who was seated in the front passenger seat. Owens told Sanford to get into the truck and accompany her to purchase cigarettes at a nearby BP gasoline station. Sanford complied. Owens then told the victim she needed to pick up defendant, Keith McBride, nicknamed "Special" or "SP," who Owens was dating at the time and who resided with her at an apartment a short distance from Brother's Bistro.

The victim drove to Owens' apartment. Owens exited the truck and went inside the building for a few minutes while the victim and Sanford waited in the truck. Eventually, Sanford heard Owens' voice at the back of the truck and got out to see what was going on. When she got to the back of the truck, she saw defendant and Owens. Defendant handed Sanford an object wrapped in a red rag and told her "to handle that." Sanford took the package and got back into the truck. When she realized the rag concealed a firearm, she exited the truck and told both defendants she was not "doing that shit." Owens snatched the gun from Sanford and declared she would "get the nigger." Defendant then told Sanford to "get in the fuckin' truck." Defendant got into the front passenger seat while Sanford got into the back seat behind him. Owens got into the backseat behind the victim.

As the victim drove the truck, Owens pointed the firearm close to the back of his head and pulled the trigger. After Owens shot the victim, defendant asked her "what the fuck did you do that for?" When the victim's truck came to halt, defendant, with Owens' help, moved the victim's body into the front passenger seat. Owens tried but was unable to drive the truck, so defendant ordered Sanford to drive. Defendant and Owens got into the back seat. At defendant's direction, Sanford drove the truck to Newark. When they neared a building in an industrial zone, defendant told Sanford to pull into an area near a dumpster. Defendant and Owens exited the car and pulled the victim's body out of the truck.

After abandoning the body, defendant took over the wheel and drove around the city in an attempt to find a "chop shop".*fn1

The search was unsuccessful and all three eventually abandoned the truck. Before leaving, Owens used the red rag to wipe down the truck.

A few hours after the victim's body was abandoned, a security guard, who worked at one of the warehouses in the area, discovered the body and called the police. The victim was found lying on his back with the left pocket of his pants pulled out. An autopsy revealed the cause of death as a single gunshot wound to the head.

The weekend following the murder, the victim's girlfriend received information about his killing and relayed this information to the Newark Police Department. Acting on this information, the police located Sanford, who agreed to accompany them to the police station. Sanford confessed to what happened and was subsequently arrested. Sanford identified Owens and defendant from photographs.

Owens was arrested on October 25, 2006, and consented to a search of her apartment. The police seized a pair of sneakers. Owens' mother also consented to have her home searched. During that search, the police discovered a plastic bag containing clothes in a garbage can. Defendant, the last to be arrested, was apprehended eight months later in New York City.

Police obtained the surveillance tape from the warehouse where the victim's body was abandoned. The tape showed defendant looking over the area around the dumpster before motioning to Sanford to drive the truck up to it. The tape then showed defendant dragging the victim's body out of the truck with Owens emerging from the truck to help him.

The State submitted several items for forensic testing, among them, the sneakers seized from Owens' apartment. The sneakers were subjected to DNA testing, and a stain on one shoe provided a DNA profile matching the victim. The police never recovered the murder weapon.

During summation, the prosecutor commented that even absent testimony from Sanford, who had a prior criminal conviction, there was still sufficient evidence to support the State's case. He then remarked: "I don't write the Rules of Evidence. Defense counsel didn't write them. Even [the trial judge] didn't write them. [They] [c]ome down to us from Trenton, Washington, from those judges. I cannot play her DVD. Defense counsel can't point out inconsistencies. I cannot play her prior testimony[.]"

Defense counsel promptly objected. The court admonished the prosecutor and directed him to move on. The prosecutor then proceeded to recount the events of the evening in question, noting:

Now they're going to go pick up SP. SP is Owens' boyfriend. SP is not Sanford's boyfriend. There's nothing between SP and Sanford. It's SP and Owens. Why are they going to get SP? He wasn't at the bar all night. Think about that. Why go pick up SP? Why is it Owens' idea to go get SP? So now they drive however far it is, half a block, a block. She doesn't know where she was, where she went to. Owens goes upstairs to get SP. There's no gun. There's no gun anywhere at this point. Owens and SP are alone for[,] I believe she testified[,] five minutes. They go up in the apartment. Behind the SUV. What are they doing behind the SUV? What are they doing up in the apartment? That's why I put it to you. They decide. They agree to rob and kill EZ. At that point EZ is a dead man.

Defense counsel did not object to this comment. After the prosecutor's summation, the court charged the jury:

Arguments, statements, remarks, openings, summations, what counsel says is not evidence and must not and cannot be treated . . . as evidence. . . . Whether or not the defendant has been proven guilty beyond a reasonable doubt is for you to determine based on all the evidence presented during the course of this trial as you find that evidence to be and any comments by counsel are simply not controlling.

During deliberations, the court received a note from the jury stating "[p]lease fully explain [C]ount 4, armed robbery." The judge brought the jury in and indicated there was an error on the verdict sheet. The defective verdict sheet charged armed robbery as follows: "Keith McBride did use force upon Robert Funderberk and/or inflict bodily injury upon Robert Funderberk, and/or commit the crime of murder upon Robert Funderberk while armed with and/or by use of a deadly weapon[,]" omitting the phrase "in the course of committing a theft." The judge re-charged the jury on armed robbery and replaced the verdict sheet with one containing the correct interrogatory. After deliberating further, the jury found defendant guilty on all but three of the offenses charged.

In a separate trial by the same jury, the State presented evidence regarding Indictment 07-01-00159, which charged defendant with certain persons not to have weapons. Prior to trial, the parties stipulated to the fact that defendant had committed "a predicate offense." However, in his opening statement, the prosecutor commented that he bore the burden to prove that defendant had "prior convictions," suggesting that defendant had multiple convictions, and handed the court three exhibits. However, when the judge charged the jury, he noted that defendant had been convicted of "a" predicate offense.

At sentencing, the court imposed ten years imprisonment with a five-year parole disqualifier on the conspiracy to commit robbery conviction. Defendant was sentenced to a thirty-year term of imprisonment without parole for felony murder. For the unlawful possession of a weapon conviction, the court imposed a five-year term of imprisonment. On the two counts of hindering prosecution, the court imposed five-year terms of imprisonment, and for defendant's conviction for disturbing human remains, he was sentenced to ten years imprisonment. These sentences were made to run concurrently with one another. All other convictions were merged.

In sentencing defendant on the certain persons indictment, the court found defendant fell within the persistent offender statute, N.J.S.A. 2C:43-3, and "given the nature and circumstances of the bringing [of] the weapon to the scene and what that weapon was used for," determined that an extended term was appropriate and imposed the extended term upon the State's motion. The court found no mitigating factors. Defendant was then sentenced to twenty years imprisonment, with a ten-year period of parole ineligibility, to be served consecutive to the thirty-year term on the previous indictment. In imposing consecutive sentences, the judge explained that but for the defendant's possession of the weapon at the scene, "this event would not have occurred."

Defendant raises the following points on appeal:

POINT I

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (NOT RAISED BELOW). POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL ARISING OUT OF THE VERDICT SHEET ORIGINALLY GIVEN TO THE JURY WHICH OMITTED A REQUISITE ELEMENT OF COUNT IV (ARMED ROBBERY) AND WHICH WAS NOT CORRECTED UNTIL THE JURY HAD ENGAGED IN DELIBERATIONS FOR A SIGNIFICANT PERIOD OF TIME.

POINT III

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL REGARDING INDICTMENT NO. 07-01-00159-I (POSSESSION OF A WEAPON BY A CONVICTED FELON) WHEN, DESPITE DEFENSE COUNSEL'S STIPULATION THE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF A PREDICATE OFFENSE, THE PROSECUTOR ESSENTIALLY INFORMED THE JURY HE HAD PREVIOUSLY BEEN CONVICTED OF MULTIPLE PRIOR OFFENSES.

POINT IV

THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING CONSPIRACY TO COMMIT ROBBERY INTO COUNT IV CHARGING ROBBERY (NOT RAISED BELOW).

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

A. THE TRIAL COURT ERRED BY IMPOSING A DISCRETIONARY EXTENDED TERM ON INDICTMENT NO. 07-01-00159-I (POSSESSION OF A WEAPON BY A CONVICTED FELON) OR, ALTERNATIVELY, BY IMPOSING THE MAXIMUM POSSIBLE EXTENDED [TWENTY-]YEAR TERM WITH THE MAXIMUM POSSIBLE [TEN-]YEAR PAROLE DISQUALIFIER IN CONJUNCTION THEREWITH.

B. THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY REQUIRING THE [TWENTY-]YEAR TERM WITH THE [TEN-]YEAR PAROLE DISQUALIFIER IMPOSED ON THE DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON BY A CONVICTED FELON BE CONSECUTIVE TO THE [THIRTY-]YEAR TERM WITH THE [THIRTY-]YEAR PAROLE DISQUALIFIER IMPOSED ON THE FELONY MURDER CONVICTION.

In his pro-se supplemental letter brief, defendant raises the following additional point:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY CONSTRUCTIVELY AMENDING THE INDICTMENT AFTER THE DEFENSE RESTED BY ALLOWING THE JURY TO CONVICT THE DEFENDANT OF FELONY MURDER IF ONE OF HIS CO-DEFENDANTS ACTUALLY CAUSED THE DEATH OF THE VICTIM, WHEN THE INDICTMENT AND VERDICT SHEET EXPRESSLY LIMITED DEFENDANT'S FELONY MURDER CULPABILITY TO ACTS OF HIS OWN HAND, THEREBY VIOLATING DEFENDANT'S RIGHT TO A FAIR TRAIL AND DUE PROCESS OF LAW IN VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW IN VIOLATION [OF] THE [U.S. CONST. amends.] V, VI[,] XIV[,] AND THE [N.J. CONST.] (1947), ART. 1[, ¶] 10.

I.

We first dispense with defendant's claim in his supplemental letter brief. The essence of this point is that the court's conduct amounted to amending the indictment by permitting the jury to convict him as if he caused the victim's death by his own hands when, in fact, it was his co-defendant, Janean Owens, who pulled the trigger. Count 7 of defendant's indictment charged that defendant "did cause the death of Robert Funderberk, when the said [co-defendant] and [defendant], acting either alone or with one or more other persons, were engaged in [the] commission of [r]obbery[.]" As the State notes, the issue was whether defendant was guilty of the robbery and whether the victim died during the commission of the robbery, not whether defendant caused the victim's death by his own hand. As such, we find defendant's pro se claim without merit.

II.

We next turn to the arguments raised on defendant's behalf through counsel. Defendant first contends the prosecutor's summation exceeded the bounds of propriety with rhetorical questions that impermissibly drew attention to defendant's right to remain silent, chiefly relying upon State v. Engel, 249 N.J. Super. 366 (App. Div.), certif. denied, 130 N.J. 343 (1991). In assessing whether improper remarks in the prosecutor's summation requires reversal, we determine whether "the conduct was so egregious that it deprive[d] . . . defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). We note prosecutors are afforded considerable leeway in their closing arguments and, in criminal cases especially, are expected to make vigorous and forceful closing arguments to juries. Frost, supra, 158 N.J. at 82; State v. Harris, 141 N.J. 525, 559, (1995). However, "a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." State v. Smith, 167 N.J. 158, 177 (2001).

Additionally, the Fifth Amendment grants a defendant the right to remain silent without suffering any penalty or adverse inference. State v. Dent, 51 N.J. 428, 440 (1968). As such, a prosecutor may not, either in subtle or obvious fashion, draw attention to a defendant's failure to testify. Engel, supra, 249 N.J. Super. at 382. Reversal is mandatory if the prosecuting attorney unambiguously calls attention to a defendant's failure to testify. State v. Williams, 113 N.J. 393, 454 (1988) (citing Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)).

We reject defendant's contention that the prosecutor's rhetorical comments referred to defendant's decision not to testify. Rather, we view these comments as fair comment on the evidence, which cannot be read as implicating defendant's right to remain silent.

As to the prosecutor's comments on the Rules of Evidence, these remarks were clearly objectionable. However, "every excursion outside the evidence will not necessarily vitiate a conviction and . . . on the question whether the improper comment shall have that effect, the making by trial counsel of a timely and proper objection and the action of the trial judge in connection therewith are ordinarily controlling considerations." State v. Bucanis, 26 N.J. 45, 56-57 (1958). Defense counsel promptly objected to the prosecutor's comments, and any potential prejudice to defendant was immediately addressed through the judge's curative instructions to the jury. Ibid. We thus conclude the prosecutor's comments were not so egregious as to deny defendant a fair trial.

III.

Defendant next argues he is entitled to a new trial because the original jury sheet erroneously omitted a requisite element of armed robbery and was not corrected until the jury had engaged in deliberations for a "significant amount of time." We agree with defendant that the verdict sheet incorrectly stated the elements of armed robbery. However, this error is of no consequence, given that the incorrect verdict sheet was replaced with the corrected version once it was brought to the court's attention. Moreover, the jury was twice instructed on the elements of armed robbery, once during the judge's final charge, and again after the verdict sheet was corrected. The jury is presumed to have understood and followed the court's instructions. State v. Vasquez, 265 N.J. Super. 528, 547 (App. Div.) certif. denied, 134 N.J. 480 (1993).

The amount of time the jury deliberated before or after the correction of the verdict sheet is not dispositive of whether the verdict sheet was misleading. Jurors are not required to deliberate for any particular length of time, State v. Ballard, 126 N.J. Super. 427, 428 (App. Div. 1974), and any contention that the jury could have determined defendant's guilt based upon the incorrect verdict sheet is sheer speculation unsupported by the record. Thus, any error on the initial verdict sheet is harmless.

IV.

Defendant also argues he was denied the right to a fair trial. Specifically, despite his stipulation that he was convicted of a predicate offense, the prosecutor "essentially informed the jury" he had been previously convicted of multiple offenses.

Under N.J.S.A. 2C:39-7, a person convicted of certain predicate offenses, who "purchases, owns, possesses or controls a firearm, is guilty of a crime of the second degree." A defendant may stipulate to a prior conviction, and this stipulation is conclusive evidence of the prior-conviction element when, as here, all the government needs to prove is that the defendant falls into the class of persons precluded from possessing a weapon. State v. Brown, 180 N.J. 572 (2004).

The prosecutor's reference in his opening statement that he had to prove defendant had "prior convictions," followed by his handing to the court three exhibits, may have suggested that the exhibits referred to multiple convictions. However, the court then put before the jury the stipulation that defendant had been convicted of at least one predicate offense, followed by the prosecutor's concurrence that such an agreement had been reached and defense counsel's representation that the parties had agreed "there's a predicate offense." The court instructed the jury on this offense in accordance with the model jury charge and, in that regard, noted the parties had agreed defendant had been convicted of "a" predicate offense. Thus, the jury could have just as easily surmised that the three exhibits related to the stipulation regarding the one predicate offense. Thus, when viewed in its entirety, the prosecutor's comment was fleeting and certainly not unduly prejudicial to defendant.

V.

Defendant argues the trial court erred by failing to merge Count 3, conspiracy to commit robbery, with Count 4, armed robbery, requiring that the conviction and sentence be reversed. The State agrees defendant's convictions should be merged. Pursuant to N.J.A.C. 2C:1-8(2), a defendant may not be convicted of more than one offense if one offense consists only of a conspiracy to commit the other offense. An attempt or a conspiracy to commit an offence is generally included in the substantive offense committed. State v. Harrison, 99 N.J. 379, 386 (1985). As such, we agree the trial court erred in failing to merge conspiracy to commit robbery with armed robbery.

This does not, however, require a reversal of defendant's sentence and conviction. Rather, we remand for entry of an amended JOC reflecting the merger of the conspiracy into the robbery.

VI.

Finally, defendant argues his sentence was manifestly unjust because the court erred in relying on three of the four aggravating factors it found and ignored at least one mitigating factor. Defendant also argues the court abused its discretion in imposing consecutive sentences for his felony murder conviction and his certain-persons-not-to-possess-weapons conviction.

In reviewing a sentence imposed by a trial court, the appellate court must (a) determine if the sentencing guidelines were violated; (b) review the aggravating and mitigating factors found to determine whether the court's consideration of those factors was based upon competent credible evidence in the record; and (c) if the court imposed a sentence in accordance with the statutory mandates, whether the sentence was clearly unreasonable so as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984). Reviewed under these standards, we are satisfied the trial court properly determined defendant was eligible for an extended term and appropriately weighed the aggravating factors in determining the length of his sentence.

Upon application of the prosecuting attorney, the court may sentence a "persistent offender," who has been convicted of a crime of the first, second or third-degree, to an extended term of imprisonment, once the statutory prerequisites for an extended-term sentence are present. State v. Pierce, 188 N.J. 155, 161 (2006). A "persistent offender", is defined as: a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced. [N.J.S.A. 2C:44-3.]

Defendant was convicted of a second-degree crime committed on October 20, 2006, at which time defendant was twenty-seven years old. Defendant was also convicted of possession and distribution of a controlled substance in 2004 for an offense he committed in October 2003, when he was twenty-four years old. As such, defendant qualifies as a persistent offender and is properly subject to an extended-term sentence.

The choice of the term to be imposed depends on the trial court's analysis of the aggravating and mitigating factors. However, in determining a defendant's sentence, the court may not consider factors that have already been used as the basis to compel an extended term. State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005).

Here, in sentencing defendant to an extended term, the court did not solely consider the fact that defendant had a prior conviction, but also considered the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses for which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). Contrary to defendant's assertion, the court did not consider N.J.S.A. 2C:44-1(a)(13), that "defendant, while in the course of committing or attempting to commit the crime used or was in possession of a stolen motor vehicle," as an aggravating factor in imposition of the sentence for the certain-persons-not-to-possess-weapons conviction. The court found no mitigating factors, and contrary to defendant's assertion, defendant had not "essentially" led a law-abiding life, as evidenced by the multiple arrests and convictions in his record. Because the court properly considered three aggravating factors and found no mitigating factors, we discern no abuse of discretion in sentencing defendant to twenty years imprisonment.

N.J.S.A. 2C:39-7(b) imposes a mandatory minimum term during which the offender is ineligible for parole. The statute provides:

The term of imprisonment shall include the imposition of a minimum term, which shall be fixed at five years, during which the defendant shall be ineligible for parole. If the defendant is sentenced to an extended term of imprisonment pursuant to [N.J.S.A.] 2C:43-7, the extended term of imprisonment shall include the imposition of a minimum term, which shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.

The court imposed a parole ineligibility term of ten years, which is one-half of defendant's twenty-year term. This is within the minimum term prescribed by the statute and is thus not an abuse of discretion.

The New Jersey Criminal Code (Code) does not specify when multiple sentences should run concurrently and when they should run consecutively. The Code simply states that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." N.J.S.A. 2C:44-5a. In the interest of sentencing uniformity, the Court, in State v. Yarbough, 100 N.J. 627 (1985), set forth guidelines to assist trial courts in deciding whether to impose concurrent or consecutive sentences:

(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 cumulation 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.*fn2

[State v. Carey, 168 N.J. 413, 423-24 (2001) (citing Yarbough, supra, 100 N.J. at 643-44).]

Here, the trial court made no specific reference to the Yarbough guidelines. As such, we remand for reconsideration of the imposition of consecutive sentences in accord with the Yarbough factors. State v. Miller, 108 N.J. 112, 123 (1987) (requiring remand where trial court does not provide separate statement of reasons for imposing consecutive sentence).

Affirmed in part and remanded for correction of the JOC and reconsideration of the imposition of consecutive sentences. We do not retain jurisdiction.


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