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State v. Kosch

Superior Court of New Jersey, Appellate Division

March 12, 2019

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

          Submitted February 5, 2019

          On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment Nos. 13-05-0187 and 13-05-0188.

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

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

          Before Judges Fisher, Hoffman and Firko.

          OPINION

          FISHER, P.J.A.D.

         This is the third time this matter has come before us. The first time, we reversed defendant's three convictions for the theft of immovable property; we remanded those counts for a new trial and left standing his other six convictions. State v. Kosch, 444 N.J.Super. 368 (App. Div.), certif. denied, 227 N.J. 369 (2016). Our mandate clearly precluded resentencing without a final disposition of the three theft-of-immovable-property counts, yet the trial judge simply shelved those counts and resentenced defendant on the other six convictions to the same aggregate sentence. So, when defendant appealed for the second time, we vacated that new judgment of conviction and remanded for a final disposition of the shelved counts. State v. Kosch, 454 N.J.Super. 440 (App. Div. 2018). The State then voluntarily dismissed the three theft-of-immovable-property counts, and the judge again resentenced defendant to the same aggregate sentence originally imposed.

         Defendant appeals and argues, among other things, that the judge: (1) by "reviving" a dismissed count, imposed the same aggregate sentence and thereby violated his double jeopardy and due process rights; (2) imposed an extended fifteen-year term on a conviction for which he previously sentenced defendant to a seven-year prison term, thereby violating double jeopardy and due process principles; and (3) imposed an excessive sentence. We reject the first two of these arguments, but, on consideration of the third, we remand for further proceedings.

         I

         The factual circumstances, as well as many of the procedural events in this convoluted matter, are explained in our earlier reported decisions and need not be repeated here. We only briefly traverse some of that well-trodden ground to explain why defendant's argument about a "revived" dismissed count is without merit.

         A

         Defendant was charged with committing numerous offenses described in two indictments: 13-05-0187 and 13-05-0188, which we will refer to as 187 and 188. To be precise, 187 and 188 each contained ten counts. In 2014, defendant was tried on eleven of those twenty counts: all of 188's ten counts and one of 187s. As we observed in Kosch I, the one count from 187 that was part of the trial was 187s tenth count, which, to confuse the reader further, was designated at trial as "count eleven." 444 N.J.Super. at 377.

         The jury convicted defendant of seven of 188's counts, as well as that single count from 187. At sentencing, the judge imposed prison terms on the seven counts from 188 for the following periods of time:

• count one (second-degree theft of immovable property): fifteen years, subject to a six-year period of parole ineligibility
• count two (third-degree forgery): five years
• count six (second-degree theft of immovable property): ...

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