Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Kosch

Superior Court of New Jersey, Appellate Division

May 9, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ROBERT J. KOSCH, JR., Defendant-Appellant.

          Submitted April 17, 2018

          On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 13-05-0188.

          Robert J. Kosch, Jr., appellant pro se.

          Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

          Before Judges Fisher, Fasciale and Sumners.

          OPINION

          FISHER, P.J.A.D. JUDGE.

         Defendant appeals a judgment of conviction rendered after he was resentenced following our decision on his first appeal. State v. Kosch, 444 N.J.Super. 368 (App. Div.), certif. denied, 227 N.J. 369 (2016). Because our prior mandate did not permit a resentencing on those convictions unaffected by our prior decision without an adjudication of those counts as to which we ordered a new trial, we reverse and remand.

         The circumstances that resulted in defendant's prosecution and conviction of nine counts of theft, forgery, and trafficking in personal identifying information, are fully recounted in our earlier opinion, id. at 374-77, and need not be repeated here. It suffices for present purposes to observe that we reversed the convictions on three counts of theft of immovable property, N.J.S.A. 2C:20-3(b), and remanded for a new trial on those counts. We also then directed that "once those three counts are finally adjudicated, defendant should be resentenced on all convictions, including those" that went undisturbed. Kosch, 444 N.J.Super. at 392-93. Without adjudicating those three counts, the judge resentenced defendant on the convictions unaffected by our prior decision. And, by ordering - for the first time - an extended fifteen-year prison term, subject to a six-year period of parole ineligibility, on the trafficking conviction, as to which he previously assigned only a seven-year term, [1] the judge imposed the same aggregate prison term and parole ineligibility period as before. This new judgment of conviction was entered on March 2, 2017.

         Defendant appeals, [2] and we now reverse and remand for further proceedings.

         We start by considering whether the new judgment of conviction is a final order.[3] As noted, we previously reversed defendant's convictions on three theft counts - counts one, six, and eight - and remanded for a new trial; we left alone the remaining convictions. The new judgment of conviction, however, contains no disposition of the three remanded counts; the judgment merely contains the observation that the "[p]rior adjudications on these counts were vacated by the Appellate Division." Leaving those three counts unadjudicated was no accident; the judge observed at the resentencing hearing:

Now, we are moving forward to a resentencing. And . . . this is without re-adjudicating counts one, six and eight. I think that is sensible, as the Appellate Division observed in another part of their opinion, there certainly seems as if there would be overlap in the merger in connection with those counts.
. . . .
Now, in terms of what happens to counts one, six and eight, I think it may be at this point the doctrine of mandatory joinder or perhaps a form of double jeopardy or . . . lesser included of what might make it sensible not to proceed on those counts. Again, I've said and the Appellate Division had said that there's an overlap. So, I do think it is sensible to proceed in this fashion and . . . I suspect those counts, there would be no good reason ever to adjudicate them.

         These comments demonstrate the judge was conscious of the fact that the reason for our remand - the need for a final disposition of those three counts - had not occurred. Despite our unambiguous mandate, the judge deemed it appropriate to allow the State to keep those three unadjudicated charges in its hip pocket pending the outcome of defendant's inevitable appeal of the new judgment of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.