Submitted February 5, 2019
appeal from Superior Court of New Jersey, Law Division,
Sussex County, Indictment Nos. 13-05-0187 and 13-05-0188.
J. Kosch, Jr., appellant pro se.
Fredric M. Knapp, Morris County Prosecutor, attorney for
respondent (Paula C. Jordao, Assistant Prosecutor, on the
Judges Fisher, Hoffman and Firko.
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.
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
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.
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.
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
• count two (third-degree forgery): five years
• count six (second-degree theft of immovable property):