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State v. Cuff

Supreme Court of New Jersey

August 6, 2019

State of New Jersey, Plaintiff-Respondent,
v.
Keith V. Cuff, Defendant-Appellant.

          Argued February 25, 2019

         On certification to the Superior Court, Appellate Division.

          Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Y. Lerer, of counsel and on the briefs).

          Maura Murphy Sullivan, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Nancy P. Scharff, Assistant Prosecutor, of counsel and on the briefs).

          Evgeniya Sitnikova, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Evgeniya Sitnikova, of counsel and on the brief).

          PATTERSON, J., writing for the Court.

         The Court granted certification limited to two of the issues defendant Keith V. Cuff raised on appeal from his nineteen -- later reduced to eighteen -- convictions: (1) defendant's challenge to his conviction of three counts of first-degree kidnapping on the basis that, although the trial court instructed the jury on the elements of second-degree kidnapping as a lesser-included offense of first-degree kidnapping, the verdict sheet included no question addressing that offense; and (2) defendant's challenge to the trial court's imposition of consecutive sentences, which resulted in an aggregate ninety-eight-year sentence, with more than sixty-six years of parole ineligibility.

         Defendant's convictions and sentence relate to six incidents: (1) the June 24, 2010 armed robbery of a Cherry Hill resident in his home, where the victim was left with his hands tied behind his back and his ankles tied together; (2) the February 28, 2011 armed robbery of a Cherry Hill residence after which the parents -- who returned home during the robbery -- and their thirteen- and fourteen-year-old daughters -- who had been tied up for roughly an hour before their parents returned -- were left with their hands tied behind their backs; (3) the March 3, 2011 armed robbery of a Winslow Township man in front of his home; (4) the March 29, 2011 flight from and apprehension by police officers of a man who fled a stolen car; (5) the April 3, 2011 robbery of a family in Gloucester Township, after which a man and his fiancée, daughter, and son were left with their hands tied; and (6) the May 14, 2011 robbery of a man and woman in their home in Sicklerville.

         Defendant was charged with fifty-five offenses, including eleven counts of first-degree kidnapping relating to four of the incidents. He was tried before a jury over twelve days. At the close of evidence, the trial court conferred with counsel and prepared a jury charge. The court read the charge to the jury and sent the written instructions into the jury room for use during deliberations.

         The jury charge addressed the jury's obligation to consider not only charges set forth in the indictment, but also lesser-included offenses as instructed by the court. In the charge, the trial court addressed the eleven charges of first-degree kidnapping pending against defendant. The court set forth the elements of the first-degree offense, including the element that defendant did not "release[] [the victim] unharmed and in a safe place prior to apprehension." Tracking the pertinent Model Jury Charges, the trial court also instructed the jury about three lesser-included offenses: second-degree kidnapping, third-degree criminal restraint, and the disorderly persons offense of false imprisonment. The verdict sheet provided spaces for the jury to record its verdict as to first-degree kidnapping, third-degree criminal restraint, and the disorderly persons offense of false imprisonment, as well as the other charges pending against defendant. It did not, however, include a space for the jury to determine whether defendant was guilty or not guilty of second-degree kidnapping. Defendant did not object to the verdict sheet.

         During deliberations, the jury asked the trial court, "[i]f applicable, how do we denote second-degree on a charge in the verdict book?" After conferring with counsel, the court instructed, "[y]ou answer the questions as they are posed on the verdict sheet. . . . Each individual question as posed." The jury convicted defendant of nineteen charges -- sixteen of the counts charged in the indictment and three lesser-included offenses. The jury convicted defendant of three counts of first-degree kidnapping as to the father and the two daughters from the February 28, 2011 incident in Cherry Hill. The jury acquitted defendant of the other kidnapping charges.

         The trial court sentenced defendant. Invoking State v. Yarbough, 100 N.J. 627, 643-44 (1985), the court determined both that certain sentences relating to different criminal episodes should run consecutively and that certain sentences arising from crimes committed in the same criminal episodes should run consecutively. The Appellate Division affirmed the trial court's determinations on the two issues relevant to this appeal: the omission of a reference to second-degree kidnapping on the verdict sheet; and the imposition of consecutive sentences. The Court granted certification limited to those issues. 234 N.J. 315 (2018).

         HELD: The omission of second-degree kidnapping from the verdict sheet does not constitute plain error. The jury instruction accurately described the State's burden of proof with respect to the elements of both first-degree and second-degree kidnapping, and directed the jury to consider second-degree kidnapping as a lesser-included offense if it did not find defendant guilty of the first-degree offense. Moreover, the evidence presented at trial did not provide a rational basis for a second-degree kidnapping conviction because the victims were not "release[d] . . . unharmed and in a safe place," an element of the second-degree offense. N.J.S.A. 2C:13-1(c). Defendant was properly convicted of three counts of first-degree kidnapping. As to the sentence, the Court agrees with the Appellate Division that the terms imposed for most of defendant's offenses constituted a proper exercise of the trial court's discretion but concludes that the trial court should resentence defendant so that it may consider whether certain offenses committed within the same criminal episode warrant concurrent rather than consecutive sentences, as well as whether the decision to make the sentences consecutive rather than concurrent made the aggregate sentence imposed on defendant an abuse of discretion.

         1. In a prosecution for first-degree kidnapping, the State must prove beyond a reasonable doubt that the victim was harmed or not released in a safe place prior to apprehension. See N.J.S.A. 2C:13-1(b)-(c). Here, the trial court properly explained that if the jury has "reasonable doubt as to whether the [S]tate has proven beyond a reasonable doubt that [defendant] knowingly harmed or knowingly did not release any of the alleged victims in a safe place prior to his apprehension, you should then find the defendant guilty of kidnap[p]ing in the second degree." The issue raised by defendant on appeal arose from an omission in the verdict sheet, which listed the elements of first-degree kidnapping and then provided spaces for the jury to record a verdict of either "guilty" or "not guilty." As to each victim, the verdict sheet instructed the jury to proceed to a question addressing the lesser-included offense of third-degree criminal restraint if it found defendant not guilty of first-degree kidnapping. The verdict sheet should have included, as to each victim, a similar inquiry about second-degree kidnapping. Defendant did not object to the omission of those questions, which the Court thus reviews for plain error. (pp. 16-20)

         2. Where the oral instructions of a court were sufficient to convey an understanding of the elements to the jury, and where the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless. In State v. Galicia, the Court reviewed a verdict sheet that incorrectly "suggested that the jury would only reach the issue of passion/provocation if it found the defendant guilty of murder." 210 N.J. 364, 375 (2012). The Court found the error harmless because there was no rational basis for the trial court to charge the jury as to the elements of passion/provocation. Id. at 385, 389. As in Galicia, there is no basis in this case for a finding of plain error. The jury had the trial court's precise and accurate explanation of the first-degree and second-degree kidnapping standards -- not only as verbally delivered in court, but in written form in the jury room. The jury clearly understood it could acquit defendant of first-degree offenses and consider lesser-included offenses; indeed, with respect to eight other first-degree kidnapping counts, it either convicted defendant of lesser-included offenses or acquitted him entirely. The evidence in this case did not provide a rational basis to convict defendant of second-degree kidnapping. Here, it is undisputed that the three victims were left in their home with their hands tied behind their backs. Defendant "released" none of them within the meaning of N.J.S.A. 2C:13-1(c). The Court rejects the argument that the jury's question, which could have pertained to many of the charges pending against defendant, indicates that the jury would have convicted him of second-degree kidnapping had the verdict sheet provided a place to record such a verdict. (pp. 20-29)

         3. In Yarbough, the Court provided guidance for determining whether multiple sentences should run concurrently or consecutively, and directed sentencing courts to consider a collection of qualitative factors, including "facts relating to the crimes," like whether "(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; [and] (e) the convictions for which the sentences are to be imposed are numerous." Id. at 643-44. A sentencing court must explain its decision to impose concurrent or consecutive sentences in a given case. When a court fails to give proper reasons for imposing consecutive sentences at a single sentencing proceeding, ordinarily a remand should be required for resentencing. (pp. 30-33)

         4. Defendant was sentenced for nineteen offenses committed in three separate criminal episodes. The trial court properly applied the Yarbough factors when it sentenced defendant to terms of incarceration running consecutively to the terms imposed for crimes committed in different criminal episodes. The court's analysis upon imposing a consecutive sentence for the first-degree kidnapping of the fourteen-year-old victim during the February 28, 2011 incident also satisfied Yarbough because she and her sister were kidnapped approximately one hour before the first-degree kidnapping of her father and the third-degree criminal restraint of her mother. (pp. 33-35)

         5. In sentencing defendant to consecutive terms for offenses committed within a single criminal episode, however, the trial court set forth findings that do not satisfy Yarbough, warranting a remand for resentencing with respect to those offenses. The Court instructs that those determinations be reconsidered on remand and that a more detailed explanation of the court's reasoning be provided. In resentencing defendant on remand, the trial court should consider the fairness of the aggregate sentence imposed for the eighteen offenses as to which defendant's convictions have been affirmed -- a necessary feature in any Yarbough analysis. (pp. 35-38)

         The judgment of the Appellate Division is affirmed in part and reversed in part. The Court vacates defendant's sentence, remands for resentencing, and retains jurisdiction to review the sentence imposed on remand.

          JUSTICE ALBIN, dissenting in part, stresses that none of the parties suggested at trial, before the Appellate Division, or in the briefing before this Court that there was not a rational basis for charging second-degree kidnapping. In Justice Albin's view, the trial court properly charged on second-degree kidnapping and, because, the verdict sheet did not allow the jury to return a verdict on that count, that omission constituted plain error -- an error clearly capable of producing an unjust result. See R. 2:10-2. Defendant had a right to fair consideration of all lesser-included offenses rationally based in the record, Justice Albin explains, and the defective jury verdict form deprived him of that right. Defendant therefore should receive a new trial, in Justice Albin's view. Justice Albin concurs with the sentencing portion of the majority's opinion.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, FERNANDEZ-VINA, and TIMPONE join in JUSTICE PATTERSON'S opinion. JUSTICE ALBIN filed an opinion, dissenting in part. JUSTICE SOLOMON did not participate.

          OPINION

          PATTERSON, JUSTICE

         The State indicted defendant Keith V. Cuff for fifty-five offenses arising from five residential robberies and an additional incident in which defendant stole a vehicle while attempting to escape from a traffic stop. A jury convicted defendant of nineteen of those offenses, including three counts of first-degree kidnapping while in possession of a firearm contrary to N.J.S.A. 2C:13-1(b)(1). The trial court sentenced defendant to an aggregate ninety-eight-year sentence, with more than sixty-six years of parole ineligibility. The Appellate Division affirmed defendant's conviction and sentence with respect to all but one of the offenses, and reduced his sentence to an aggregate ninety-year sentence, with more than sixty-four years' parole ineligibility. We granted defendant's petition for certification, limited to two of the issues that he raised on appeal.

         First, we review defendant's challenge to his conviction of three counts of first-degree kidnapping. Pursuant to N.J.S.A. 2C:13-1, when the State proves the elements of first-degree kidnapping, but fails to demonstrate that a defendant did not "release[] the victim unharmed and in a safe place prior to [the defendant's] apprehension," the defendant is guilty of kidnapping in the second degree. N.J.S.A. 2C:13-1(c). Although the trial court instructed the jury on the elements of second-degree kidnapping as a lesser-included offense of first-degree kidnapping, the verdict sheet included no question addressing that offense. Defendant did not object to that omission at trial. He contends on appeal, however, that his convictions on the first-degree kidnapping charges should be reversed by virtue of the error in the verdict sheet.

         We hold that the omission of second-degree kidnapping from the verdict sheet does not constitute plain error. The jury instruction, which the trial court read to the jury and provided in written form to be used during deliberations, accurately described the State's burden of proof with respect to the elements of both first-degree and second-degree kidnapping, and directed the jury to consider second-degree kidnapping as a lesser-included offense if it did not find defendant guilty of the first-degree offense. The jury found that the State proved beyond a reasonable doubt all elements of the offense of first-degree kidnapping.

         Moreover, the evidence presented at trial did not provide a rational basis for a second-degree kidnapping conviction. That evidence established that defendant left the victims in question -- a father and his two young daughters -- in their home with their hands tied behind their backs. Those victims were not "release[d] . . . unharmed and in a safe place," an element of the second- degree offense. N.J.S.A. 2C:13-1(c). We therefore hold that defendant was properly convicted of three counts of first-degree kidnapping.

         Second, we review defendant's challenge to the trial court's imposition of consecutive sentences. Defendant contends that the court misapplied the factors prescribed in State v. Yarbough, 100 N.J. 627, 643-44 (1985), when it imposed those sentences. We agree with the Appellate Division that the terms of incarceration imposed for most of defendant's offenses constituted a proper exercise of the trial court's discretion. We conclude, however, that the trial court should resentence defendant so that it may consider whether certain offenses committed within the same criminal episode warrant concurrent rather than consecutive sentences, as well as whether the decision to make the sentences consecutive rather than concurrent made the aggregate sentence imposed on defendant an abuse of discretion. We therefore vacate defendant's sentence and remand for resentencing.

         Accordingly, we affirm in part and reverse in part the Appellate Division's judgment, and retain jurisdiction to review the sentence imposed on remand.

         I.

         A.

         We derive our summary of the six incidents that gave rise to this matter from the record of defendant's trial.

         On June 24, 2010, a Cherry Hill resident was robbed in his home by three men, one of whom carried a weapon. According to the victim, the men stole cash, traveler's checks, and a watch. The victim was left in the home with his hands tied behind his back and his ankles tied together.

         On February 28, 2011, two armed men entered a family's Cherry Hill residence when only the children were at home. Two of the children were asleep, but the men encountered a fourteen-year-old girl and a thirteen-year-old girl. They tied the girls' hands behind their backs, and detained them in an upstairs room. When the parents came home about an hour later, the men accosted the father at gunpoint, took about two thousand dollars in cash from him, and demanded access to his safe. The men tied the mother's hands behind her back, forced the husband to turn the alarm system off, brought him to the basement, and tied his hands behind his back. After the men left, the father was able to unbind his hands. He went upstairs, untied his wife's hands, located his daughters, and freed them.

          On March 3, 2011, a resident of Winslow Township arrived at his home and was confronted by two men, one of whom pointed a gun at the back of his neck. The men stole approximately two thousand dollars in cash from the man and took his car, which was recovered later that night.

         On March 29, 2011, a Gloucester Township police officer noticed a car matching the description of a vehicle reported to have been involved in an incident unrelated to the crimes involved in this matter. The officer turned his patrol vehicle around to follow the car, which pulled onto the shoulder of the road. The officer saw a man exit the car via the passenger door and run away. The officer approached and questioned the driver, who claimed not to know the name of the person who had fled his car. The officer called for backup, and responding officers were able to apprehend the fleeing suspect. As officers tracked the suspect, they found two handguns. They later discovered that the vehicle from which the man had fled had been stolen six months earlier.

         Another robbery took place on April 3, 2011 in Gloucester Township. Arriving at his home, a man was confronted by two men wearing masks who demanded he open his safe, from which the men took money. The two men then tied the hands of the man, his fiancée, his daughter, and his son, transported the two adults into the bathroom, and placed them into the bathtub. After warning the victims not to move for five minutes, the two men left the home.

         On May 14, 2011, a man and a woman arrived at their home in Sicklerville and were confronted by three men, one of whom pointed a gun at them. Two of the men forced the man to open his safe and took about two thousand dollars, a watch, a computer, and silver. The three men then left the home.

         B.

         Defendant was charged with fifty-five offenses. He and his codefendants, Tamir Logan and Dante Goree, were charged with first-degree kidnapping, first-degree robbery, and other offenses in connection with the June 24, 2010 incident in Cherry Hill. Defendant alone was charged with four counts of first-degree kidnapping, two counts of first-degree robbery, and other offenses in connection with the February 28, 2011 incident in Cherry Hill. He and codefendant Abdul Mansaray were charged with first-degree robbery and other offenses in connection with the March 3, 2011 incident in Winslow Township. Defendant was charged with second-degree unlawful possession of a weapon and third-degree theft of an automobile in connection with the March 29, 2011 incident in Gloucester Township. He and codefendant Mansaray were charged with four counts of first-degree kidnapping and other offenses in connection with the April 3, 2011 incident in Gloucester Township. Defendant alone was charged with first-degree robbery in connection with the April 3, 2011 incident in Gloucester Township. Finally, defendant and codefendants Logan and Goree were charged with two counts of first-degree kidnapping, two counts of first-degree robbery, and other offenses in connection with the May 14, 2011 incident in Sicklerville.[1]

         Defendant moved to sever the charges so that the charges relevant to each incident would be adjudicated in separate trials. The trial court denied the motion.

         Defendant and Logan were tried before a jury over twelve days. The State presented the testimony of ten of the victims, two cooperating witnesses, investigating officers from several police departments, and other law enforcement personnel.

         At the close of the evidence, the trial court conferred with counsel and prepared a jury charge. The court read the charge to the jury and sent the written instructions into the jury room for use during deliberations.

         The jury charge addressed the jury's obligation to consider not only charges set forth in the indictment, but also lesser-included offenses as instructed by the court.

         In the charge, the trial court addressed the eleven charges of first-degree kidnapping pending against defendant and the three first-degree kidnapping charges pending against Logan.

         The court set forth the elements of the first-degree offense, including the element that defendant did not "release[] [the victim] unharmed and in a safe place prior to apprehension." Tracking the pertinent Model Jury Charges, the trial court also instructed the jury about three lesser-included offenses: second-degree kidnapping, N.J.S.A. 2C:13-1(c)(1); third-degree criminal restraint, N.J.S.A. 2C:13-2; and the disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3.

         The verdict sheet provided spaces for the jury to record its verdict as to first-degree kidnapping, third-degree criminal restraint, and the disorderly persons offense of false imprisonment, as well as the other charges pending against defendant. It did not, however, include a space for the jury to determine whether defendant was guilty or not guilty of second-degree kidnapping. Defendant did not object to the verdict sheet.

         During deliberations, the jury asked the trial court, "[i]f applicable, how do we denote second-degree on a charge in the verdict book?" After conferring with counsel, the court instructed, "[y]ou answer the questions as they are posed on the verdict sheet. . . . Each individual question as posed. You, the jury, are not to be concerned about the degree of the crime. That is in the Court's domain."

         The jury convicted defendant of nineteen charges -- sixteen of the counts charged in the indictment and three lesser-included offenses.

         With respect to the February 28, 2011 incident in Cherry Hill, the jury convicted defendant of nine charged counts and one lesser-included offense: three counts of first-degree kidnapping, in which the victims were the father and the daughters; one count of false imprisonment as a lesser-included offense of first-degree kidnapping, in which the victim was the mother; one count of first-degree robbery, N.J.S.A. 2C:15-1; one count of second-degree burglary, N.J.S.A. 2C:18-2; one count of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; one count of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and one count of second-degree conspiracy to commit "robbery and/or kidnapping," N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:13-1(b)(1). The jury acquitted defendant of another count of first-degree robbery and a lesser-included offense to that charge, and did not reach a verdict as to six other charges arising from that incident.

         With respect to the March 3, 2011 incident in Winslow Township, the jury convicted defendant of five charged counts and one lesser-included offense: one count of first-degree robbery; one count of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; one count of second-degree possession of a weapon for an unlawful purpose; one count of second-degree unlawful possession of a weapon; one count of fourth-degree aggravated assault with a firearm; and one count of fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(b), as a lesser-included offense of third-degree theft of an automobile, N.J.S.A. 2C:20-10(c).

         With respect to the March 29, 2011 incident involving the stolen car, the jury convicted defendant of one charged count and one lesser-included offense: one count of second-degree unlawful possession of a weapon; and one count of unlawful taking of a means of conveyance as a lesser-included offense of third-degree theft of an automobile.

         Finally, the jury convicted defendant of second-degree conspiracy to commit "robbery and/or kidnapping" in connection with the April 3, 2011 incident in Gloucester Township. It acquitted defendant of all other charges, including four counts of first-degree kidnapping, in connection with that incident.

         The jury acquitted defendant of all charges in connection with the June 24, 2010 incident in Cherry Hill, including one count of first-degree kidnapping, and acquitted him of all charges in connection with the May 14, 2011 incident in Sicklerville.

         C.

         The trial court sentenced defendant. It found and weighed heavily aggravating factors three, "[t]he risk that the defendant will commit another offense;" six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;" and nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(3), (6), (9). It found no mitigating factors and concluded that the aggravating factors substantially outweighed the mitigating factors.

         Invoking Yarbough, 100 N.J. at 643-44, the court determined both that certain sentences relating to different criminal episodes should run consecutively and that certain sentences arising from crimes committed in the same criminal episodes should run consecutively.

         The court imposed an aggregate term of ninety-eight years' incarceration with more than sixty-six ...


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