STATE OF NEW JERSEY VS. BROOKE L. HOFFMAN (14-12-1340, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4341-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BROOKE L. HOFFMAN,
Defendant-Appellant.1
_________________________
Submitted May 1, 2019 – Decided May 28, 2019
Before Judges Nugent, Reisner, and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 14-12-
1340.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stephen P. Hunter, Assistant Deputy Public
Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (David M. Liston, Assistant
Prosecutor, of counsel and on the brief).
1
This appeal was calendared back-to-back with State v. Martin, No. A-1224-
17.
PER CURIAM
Convicted by a jury of seven crimes and four disorderly persons offenses
she committed during the home invasion and robbery of an elderly couple, and
sentenced to an aggregate prison term of eleven years and six months, defendant,
Brooke L. Hoffman, appeals from the Judgment of Conviction (JOC). She
argues that three mistake-laden instructions the trial court gave to the jury, none
of which she objected to, deprived her of a fair trial. She also argues that the
sentencing judge committed numerous errors. Finding no plain error in the
challenged charges, we affirm defendant's conviction. Finding inadequate the
sentencing judge's explanation for imposing consecutive sentences, we vacate
the terms of the JOC imposing consecutive sentences and remand for
reconsideration and resentencing as to that issue only.
I.
In December 2014, a Middlesex County grand jury, in eighteen counts of
a twenty-count indictment, charged defendant and co-defendants, Antoine
Martin and Robert Peterson, with the following crimes: second-degree
conspiracy, N.J.S.A. 2C:5-2 (count one); first-degree robbery, N.J.S.A. 2C:15-
1 (counts two and three); second-degree kidnapping, N.J.S.A. 2C:13-1(b)
(counts four and five); second-degree burglary, N.J.S.A. 2C:18-2 (count six);
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third-degree criminal restraint, N.J.S.A. 2C:13-2 (counts seven and eight); third-
degree terroristic threats, N.J.S.A. 2C:12-3(a) (counts nine and ten); fourth-
degree possession of prohibited devices, N.J.S.A. 2C:39-3(h) (count eleven);
second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count
twelve); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d)
(count thirteen); third-degree possession of a knife for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count fourteen); second-degree theft by extortion, N.J.S.A.
2C:20-5(a) (count fifteen); third-degree theft by unlawful taking, N.J.S.A.
2C:20-3(a) (count sixteen); fourth-degree criminal mischief, N.J.S.A. 2C:17-
3(b)(8) (count seventeen); and third-degree receiving stolen property, N.J.S.A.
2C:20-7 (count nineteen).
In addition, the grand jury charged Peterson with hindering his own
apprehension, N.J.S.A. 2C:29-3(b)(1), and Martin with hindering his own
apprehension, N.J.S.A. 2C:29-3(b)(4).
Before defendant's jury trial began, the State dismissed the kidnapping
counts, four and five. The State tried defendant separately from her co-
defendants. Defendant's trial took place during nine non-consecutive days in
October and November, 2016. The jury rejected defendant's defense of duress
and convicted her of the following offenses: second-degree conspiracy, N.J.S.A.
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2C:5-2 (count one); two counts of the lesser-included disorderly persons
offenses of theft by unlawful taking, N.J.S.A. 2C:20-3(a) (counts two and three);
second-degree burglary, N.J.S.A. 2C:18-2 (count six); two counts of the lesser-
included disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3
(counts seven and eight); two counts of third-degree terroristic threats, N.J.S.A.
2C:12-3(a) (counts nine and ten); fourth-degree possession of a stun gun,
N.J.S.A. 2C:39-3(h) (count eleven); second-degree theft by extortion, N.J.S.A.
2C:20-5(a) (count fifteen); and fourth-degree criminal mischief, N.J.S.A. 2C:17-
3(b)(8) (count seventeen).
Five months after the jury trial, a judge who had not presided over the trial
sentenced defendant. On count eleven, fourth-degree possession of a stun gun,
the judge imposed a sixteen-month jail term and ordered defendant to serve the
sentence for this offense first. On count seventeen, fourth-degree criminal
mischief, the judge imposed an eighteen-month jail term, consecutive to count
eleven, possessing a stun gun. The judge ordered defendant to serve the sentence
for criminal mischief second, before any of the remaining sentences. On each
of counts six, second-degree burglary, and fifteen, second-degree theft by
extortion, the judge imposed a nine-year jail term subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, concurrent to each other but
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consecutive to the sentence on count seventeen, criminal mischief. On the two
counts of false imprisonment, counts seven and eight, the judge imposed six -
month jail terms, concurrent to each other and to the sentences he imposed on
counts six and fifteen, burglary and theft by extortion. The judge merged the
remaining counts.
II.
During defendant's trial, the State presented the testimony of three police
witnesses, the two victims, and co-defendant Peterson. The State also
introduced photographs, physical evidence, and a recording of defendant's
confession. Defendant testified on her own behalf.
The State established the following facts. On an August morning in 2014,
two men and a woman, two masked, one not, entered the home of Mr. and Mrs.
Lawrence. One intruder stayed in the kitchen with the elderly couple while the
others searched the home and ransacked the bedroom, destroying closet doors,
strewing the couple's belongings about the room, and breaking many of their
possessions. Although the victims did not immediately recognize the female
intruder, whose face was covered, they realized during the home invasion that
she was defendant, the mother of their great grandson.
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Mrs. Lawrence, age eighty-two when she testified at trial, recounted the
following events. Several years ago, defendant and Mrs. Lawrence's grandson
had a baby. Mrs. Lawrence was fond of defendant and the baby. Early on the
morning of the incident, Mrs. Lawrence had driven to defendant's home to take
her to the bank. Inexplicably, defendant never came out, so Mrs. Lawrence
returned to her home.
Mrs. Lawrence was preparing lunch when the first intruder entered her
home. He left and returned a short time later, followed by two others. Two of
the intruders went to the bedroom, where her husband was resting, and brought
him into the kitchen. The taller intruder, later identified as co-defendant
Peterson, remained in the kitchen with the Lawrences and held Mrs. Lawrence
at knifepoint through most of the ordeal.
The intruders repeatedly demanded the "blue box" and the money. They
refused to believe Mrs. Lawrence's protests that she and her husband had been
robbed many times and had no money. One of the intruders, later identified as
Martin, repeatedly threatened her and her husband. First, he threatened to burn
down her house and cause a lot of damage if they didn't give him money. At
one point, he went into the bedroom, found a figurine clock that belonged to
Mrs. Lawrence, and smashed it. A short time later, he found her husband's
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handgun and two Tasers. Martin threatened to shoot Mr. Lawrence if the
Lawrences did not give him money. Another time, he threatened to use the
Tasers on them. A third time, he told Peterson to put a knife to Mrs. Lawrence's
throat and stab her if she moved.
Defendant and Martin searched the bedroom, where they caused
considerable damage. Defendant, whom Mrs. Lawrence described as the girl,
also searched the attic and the cellar. Mrs. Lawrence explained that defendant
and Martin were going through the house. Defendant was whispering to him
where to go. Mrs. Lawrence described how at one point Peterson put down the
knife and began playing with one of the Tasers. She grabbed the knife, ran to
the back door, and screamed to the neighbor for help. Peterson caught her,
grabbed her shoulder, and she fell. She could not get up. He picked her up, sat
her down, and told her not to reach for the knife, or he would Taser her.
Peterson then called out, "Antoine, are you done yet[?]" There was no
answer. He then called out, "Brooke." Mrs. Lawrence said she was shocked, as
she now realized who defendant was.
Peterson realized the others had left through the front door. He told the
Lawrences to watch the clock for five minutes. He left through the back door.
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Because the intruders had broken the telephones in the house, Mr.
Lawrence scurried to a nearby business and called the police. They responded
within minutes. A short time after they arrived, a police car came to the house.
Peterson was in the car. Mrs. Lawrence identified him.
Mr. Lawrence was almost eighty-five years old when he testified at trial.
His testimony, with some discrepancies, corroborated his wife's testimony. He
testified that the intruders took two boxes of the Lawrences' possession when
they fled, including Mr. Lawrence's dog tags from the service.
Michele Arancio, a police dispatcher, received Mr. Lawrence's emergency
call at noon and dispatched officers to his home. Once police "cleared" the
house, they began patrolling surrounding areas. After receiving information
about the possible location of one suspect, Detective Shaun Clifford and other
detectives arrested Peterson as he was exiting the bathroom of a salon in a nearby
strip mall. Peterson emerged shirtless. The detective found the red t -shirt
Peterson had been wearing in the bathroom. The police also recovered a knife
in the area between the house and the salon where Peterson was apprehended,
and later recovered a Taser hidden in the dropped ceiling above the toilet in the
bathroom from which Peterson emerged immediately before police arrested him.
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Peterson was transported to the victims' home, where they identified him.
Lieutenant Daniel Noonan advised Peterson of his Miranda2 rights and then
questioned him. Initially reluctant to give names, but apparently angry because
the others had left him at the victims' home, Peterson named defendant and
Martin, whom Peterson knew as "Brooklyn."
Police officers drove to the apartment complex where Martin lived. They
found the car the perpetrators had used, looked up registration information from
the license plate number, and determined where the registered owner lived.
Officers telephoned the apartment, Martin came out, and police arrested him.
Martin's wife consented to a search of the apartment. When police searched it,
they seized various possessions that had been taken from the Lawrences' home ,
including Mr. Lawrence's handgun and one of the Tasers. During the search,
they found defendant hiding under a pile of clothes in a closet. When arrested,
she claimed she was a juvenile and gave her name as Courtney Hoffman. The
police transported her to the police station where she confessed after waiving
her Miranda rights. At trial, the prosecutor played a DVD of defendant's
confession.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Co-defendant Peterson testified for the State. Peterson pled guilty to first-
degree robbery in exchange for the prosecutor's agreement to recommend a ten -
year prison term subject to NERA. Peterson, who was twenty-one years old
when he testified, said he had known defendant since middle school. They
recently renewed their friendship at a memorial service for a mutual
acquaintance and soon thereafter entered into a relationship. Peterson had been
staying with defendant for approximately three weeks before committing their
crime.
According to Peterson, approximately a week after he began staying with
defendant, she talked about robbing the Lawrences. At first, he refused to
participate. However, he needed money. So when defendant brought up the
subject again, he agreed. Defendant mentioned that the Lawrences had a
granddaughter who had previously stolen from them successfully.
On the morning of the robbery, Peterson, then eighteen years old, agreed
with defendant to rob the Lawrences. He called Martin, whom he referred t o as
Brooklyn, to drive.
The Lawrences were not supposed to be home. Defendant was supposed
to call Mrs. Lawrence and ask her to pick up her son. Peterson recounted the
events of the home invasion. His account essentially corroborated that which
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had been given by Mrs. Lawrence. Peterson said the incident lasted
approximately one-half hour. During that time, in addition to searching the
house for money, defendant signaled him to punch Mr. Lawrence. He declined
to do so.
Defendant, age twenty-one at the time of trial, testified on her own behalf.
She admitted to her involvement in the robbery but claimed she did not
voluntarily participate. Rather, she claimed Peterson threatened her. Defendant
claimed the robbery was Peterson's idea. He threatened to shoot her and her
three-year-old son if she did not help him.
According to defendant, Peterson began staying with her approximately
three weeks before the robbery. On the morning of the robbery, defendant
needed to go to the bank. She asked Peterson for a ride. He then called a man
she did not know. When the man showed up at her apartment, she and Peterson
got in the car to go to the bank.
On the way to the bank, the man who was driving stopped at his apartment.
She and Peterson waited outside the car. That is when Peterson first mentioned
the robbery. He said he was going to get some money and she was going with
him. He asked her for the number of the Lawrences' granddaughter. His phone
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did not work, so she telephoned the granddaughter, who said her grandparents
kept their money in their shoes, in the bedroom, under their bed.
Defendant repeated the answers out loud so that Peterson could hear her.
Defendant started to walk away. Peterson grabbed her. They argued. He said
he was going to rob the Lawrences and she was going with him. He said he did
not intend to leave any witnesses. Defendant replied that he would get caught.
Defendant claimed Peterson perceived this as a threat to tell on him, and in
response, he said "[w]ell, now you know about it and you have to come with
me." He threatened to have her and her son shot if she did not go with him.
Defendant reacted by screaming and punching Peterson. He wrapped his
arms around her and pulled her back into the car. By then, Martin and another
young man had arrived at the car. Martin drove to the Lawrences' home while
she sat in the back seat and cried. Peterson gave Martin directions to the
Lawrences' home.
When they arrived, Peterson pushed defendant out of the car and tied a t-
shirt around her face, covering her entire face except her eyes. Defendant
testified that Peterson and the other young man — not Martin — entered the
Lawrences' home with her. Peterson had a grip around defendant's arm and was
pushing her toward the house. Defendant was scared, thinking only about her
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son. She knew the type of people Peterson hung out with and she believed he
was capable of carrying out his threats.
After entering the home, Peterson shoved defendant away and walked
toward the kitchen. Defendant walked behind Peterson, and the third man
walked behind her. Defendant assumed the Lawrences would be home, because
there was no reason she knew of why they would be away. Defendant recounted
the details of the home invasion, which were consistent with Mrs. Lawrence's
testimony. Defendant denied taking any money. She claimed she took nothing.
Rather, she pretended to rummage through the house and help the other man.
She saw the other man break some things, but did not see him actually steal
anything.
Defendant and the other man were walking back toward the kitchen when
Mrs. Lawrence attempted to run. Peterson ran after her. Sensing this was her
chance to get away, defendant ran out of the house through the front door. The
other man followed. They drove off without Peterson.
The three drove to Martin's apartment. She went in. The other man left.
When the police knocked on Martin's apartment door, Martin told her to hide in
a closet, which she did. He told her to stay there and keep quiet. The police
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eventually found her and transported her to the police station, where she gave a
formal, videotaped statement.
Defendant testified she did not tell the police that Peterson had threatened
her. She was scared, he knew where she lived, and he knew where her father
lived. She was concerned for her son. Therefore, she never told anyone about
the threat, because she feared Peterson would carry it out.
Defendant was in court when Peterson pled guilty. She could no longer
get him in trouble, because he admitted what he did. Because he could no longer
turn around and say she got him in trouble, she now felt as though she could
disclose how he had threatened her. She was able to tell her story for the first
time.
During cross-examination, defendant admitted she gave a false name to
police when they found her in Martin's closet. She denied being aware that the
third person who entered the Lawrences' home was Martin. Confronted with her
statement to the police naming Martin as the third robber, she said she did so
because the police told her Martin had been in the house.
The jury deliberated over five days. During their second day of
deliberations, the jurors submitted the following question to the court:
If we were to find that the defendant was under duress,
can we find that she was under duress for some of the
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counts charged or must it be a defense for all the counts
charged?
After the court and counsel received the question, the court stated:
I think you would agree, that if . . . duress applies to
one count, it applies to all. And I'm hesitant to answer
directly anything without referring to the charge, but
how do you want me to respond to [the question]?
In response to the court's question, defense counsel repeatedly insisted the
defense of duress applied to all counts. Defense counsel stated:
[Defense Counsel]: Judge, I'd just refer them back to
the instructions and answer it the way you just
answered it. I mean, it's all or nothing in this case. It
isn’t like she just happened to –
[The Court]: Well, all the counts, I believe, are
identified, including the lessers in the first paragraph of
duress. The charge.
So I can say I'll refer you back to duress which
they have, but – and you'll note that all counts are
included as a defense.
[Defense Counsel]: Right, but the answer to [the
question], though, I think should be refer[red] to duress,
but the answer is no. It's – the argument in this case by
the defense is that duress applies to everything. That's
– it's not applying to half of it all – it's all of it.
[Prosecutor]: Well, I think that's in your answer.
You're saying look – the duress instruction relates to all
counts charged.
[The Court]: Yeah.
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[Defense Counsel]: I just wouldn't want to be vague
where they hear that and they go back to re-read it and
everything and then I'd just make it clear to them that
the answer to the question literally is no, comma, go
back and refer to duress, not that all the charges are
included in that charge that you have in the jury room.
[The Court]: Oh, I see. Yeah, right. No. Yeah.
When the jury returned, the court instructed them as follows:
All right. I have your questions. First question is: "If
we were to find that the defendant was under duress,
can we find that she was under duress for some of the
counts charged or must it be a defense for all the counts
charged?"
My answer is this: I refer you back to the duress charge
itself contained pages [seventeen] and [eighteen] and
this: if you find duress applies, then it applies to all the
counts.
The jury deliberated three more days before returning its verdict. After
defendant was sentenced, she filed this appeal.
III.
On appeal, defendant raises the following points:
POINT I
WHEN THE JURY ASKED WHETHER IT COULD
DETERMINE THAT DURESS APPLIED TO SOME
COUNTS, BUT NOT OTHERS, THE TRIAL COURT
WRONGLY INSTRUCTED THAT DURESS COULD
ONLY APPLY TO ALL THE COUNTS. THIS
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IMPROPER INSTRUCTION REQUIRED THE JURY
TO TAKE AN ALL-OR-NOTHING APPROACH TO
DURESS AND THUS DENIED DEFENDANT A
FAIR TRIAL. U.S. Const. Amend. XIV; N.J. Const.
Art. I, ¶ 1. (Not Raised Below).
POINT II
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY ISSUING AN UNCONSTITUTIONAL
INSTRUCTION ON FLIGHT AS CONSCIOUSNESS
OF GUILT. U.S. Const. Amend. XIV; N.J. Const. Art.
I, ¶ 1 (Not Raised Below).
POINT III
THE TRIAL COURT INCORRECTLY LIMITED THE
BIELKOWICZ INSTRUCTION FOR ACCOMPLICE
LIABILTY TO CRIMINAL RESTRAINT,
REQUIRING REVERSAL OF DEFENDANT’S
BURGLARY CONVICTION. U.S. Const. Amend.
XIV; N.J. Const. Art. I, ¶ 1, 10 (Not Raised Below).
POINT IV
NUMEROUS SENTENCING ERRORS REQUIRE A
REMAND FOR RESENTENCING. U.S. Const.
Amend. VIII, XIV; N.J. Const. Art. I, ¶¶ 1, 12.
We first address defendant's three points challenging jury instructions.
A.
Defendant requested the duress instruction she now challenges in her
brief's first point. Her challenge on appeal to the instruction she requested at
trial implicates the doctrine of invited error. The doctrine "is designed to
prevent defendants from manipulating the system." State v. Jenkins, 178 N.J.
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347, 359 (2004). Thus, a "defendant cannot beseech and request the trial court
to take a course of action, and upon adoption by the court, take his chance on
the outcome of the trial, and if unfavorable, then condemn the very procedure
he sought and urged, claiming it to be error and prejudicial." State v. Harper,
128 N.J. Super. 270, 277 (App. Div. 1974) (citing State v. Pontery, 19 N.J. 457,
471 (1955). "Trial errors which were induced, encouraged or acquiesced in or
consented to by defense counsel ordinarily are not a basis for reversal on
appeal." Ibid.Such is the case here. We find no error in the instruction the trial court
gave in response to the jury's question about duress. Nothing in the evidence or
in defendant's testimony supported a finding that defendant at times acted under
duress and at times did not. Nonetheless, defendant insisted the court give the
instruction it gave. Under those circumstances, and absent a compelling reason
to overlook the doctrine of invited error, defendant may not manipulate the
system by urging as error on appeal the action she urged the court to take at trial.
B.
Defendant did not object to the flight and accomplice liability instructions
she now challenges in her brief's second and third points. We find plain error
in neither instruction.
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When a defendant does not object to a jury instruction at trial, an appellate
court reviews the charge for plain error. R. 1:7-2; R. 2:10-2; State v. McKinney,
223 N.J. 475, 494 (2015). Plain error is a "[l]egal impropriety in the charge
prejudicially affecting the substantial rights of the defendant sufficiently
grievous to justify notice by the reviewing court and to convince the court that
of itself the error possessed a clear capacity to bring about an unjust result."
State v. Adams, 194 N.J. 186, 207 (2008) (alteration in original) (quoting State
v. Jordan, 147 N.J. 409, 422 (1997)). Such is not the case here.
This is the instruction the judge gave the jury on flight:
There has been some testimony in the case from which
you may infer that the defendant fled shortly after the
alleged commission of the crime. The defense has
suggested the following explanation: That she left
because she was in fear of Robert Peterson. If you find
defendant's explanation credible, you should not draw
any inference of the defendant's consciousness of guilty
[sic] from the defendant's departure.
If after consideration of all of the evidence, you
find that the defendant, fearing that an accusation or
arrest would be made against her on the charge
involved in the indictment, took refuge in flight for the
purpose of evading the accusation or arrest, then you
may consider such flight in connection with all the
other evidence in the case, as an indication or proof of
a consciousness of guilt. It is for you as judges of the
fact to decide whether or not the evidence of flight
shows a consciousness of guilt and the weight to be
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given such evidence in light of all of the other evidence
in the case.
Defendant argues the wording of this instruction shifted to defendant the
burden of disproving she fled due to consciousness of guilt and did not make
clear the State's burden to prove defendant fled because of consciousness of
guilt. We disagree.
Defendant's argument is based on a misinterpretation and misconstruction
of the instruction. Nothing in the instruction expressly states defendant had any
burden. That defendant did not raise the issue when repeatedly given the
opportunity to do so at trial – where she heard the manner and context in which
the instruction was delivered – suggests the instruction did not connote what
defendant now ascribes to it in hindsight. See State v. Singleton, 211 N.J. 157,
182 (2012) ("If the defendant does not object to the charge at the time it is given,
there is a presumption that the charge was not error and was unlikely to prejudice
the defendant's case.") (citing State v. Macon, 57 N.J. 325, 334-34 (1971)).
Defendant admitted at trial she fled the scene after Mrs. Lawrence
attempted to escape through the front door of her house. Defendant also
admitted that she and Martin left Peterson behind and that she hid from police
in Martin's bedroom closet. She claimed to have done all these things out of
fear that Peterson would harm her and her child. The court adequately instructed
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the jurors on the competing inferences they could accept or reject as to why
defendant fled and hid. Moreover, in view of defendant's admission that she
participated in the home invasion, fled from the scene and the police, and gave
the police a false name when found, the trial court's instruction on flight, even
if error, was not clearly capable of producing an unjust result. Adams, 194 N.J.
at 207.
Nor was the alleged error in the accomplice liability charge clearly
capable of bringing about an unjust result. Defendant argues that in part of the
charge, by limiting the instruction on accomplice liability to criminal restraint,
the trial court erred, thus requiring reversal of her conviction of burglary. But
we must examine the entire charge to see whether it was ambiguous or whether
it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005); State
v. Hipplewith, 33 N.J. 300, 317 (1960). Considered as a whole, the charge
adequately informed the jury of the principles of law concerning accomplice
liability. Defendant's arguments to the contrary are without sufficient merit to
warrant further discussion. R. 2:11-3(e)(2).
IV.
Last, we address defendant's arguments concerning her sentence. She
contends: (1) criminal mischief should have merged with theft by extortion
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because the damaging of the Lawrences' house phones was part of the threats
that were used to extort the Lawrences; (2) the judge gave no reasons for
imposing three consecutive sentences, which was not supported by the facts, as
there were only two victims; (3) the judge failed to give reasons for directing
the order of the consecutive sentences in such a manner as to impose an
additional period of parole ineligibility; and (4) the judge failed to address
mitigating factors raised by defense counsel in imposing an excessive sentence
that exceeded the prosecutor's recommendation.
The first and fourth arguments are without sufficient merit to warrant
discussion. R. 2:11-3(e)(2). Finding merit in defendant's second and third
arguments, we vacate the judgment of conviction's terms imposing consecutive
sentences and remand for resentencing as to whether the sentences should be
concurrent or consecutive. The sentencing judge shall afford the parties ample
opportunity to be heard as to those issues and shall explain the reasons for the
sentencing decision.
In sentencing defendant, the sentencing judge did not explain why he was
imposing consecutive sentences or why he was ordering defendant to serve the
sentences in a specific sequence. "When a trial court fails to give proper reasons
for imposing consecutive sentences at a single sentencing proceeding, ordinarily
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a remand should be required for resentencing." State v. Carey, 168 N.J. 413,
424 (2001) (citing State v. Miller, 108 N.J. 112, 122 (1987)). In addition, when
"imposing a least restrictive or flat prison term preceding a more restrictive
prison term, the court is directed to explain the consequence of any sequencing
and to justify its exercise of discretion to impose the specific real -time
consequence based on the court's finding and weighing of aggravating factors."
State v. Pierce, 220 N.J. 205-06 (2014) (citing State v. Ellis, 346 N.J. Super.
583, 597 (App. Div. 2002).
The State argues that we can infer from the sentencing record the reasons
for both the trial court's imposition of consecutive sentences and the sequencing
of those sentences; and, further, that such inferred reasons satisfy the criteria for
imposing consecutive sentences. We decline to do so. "[A]ppellate courts
should exercise original sentencing jurisdiction sparingly." Carey, 168 N.J. at424 (citing State v. Kromphold, 162 N.J. 345, 355 (2000)). Remand is the
"preferred procedure" because "the trial court may restructure the sentence on
remand without violating the defendant's due process or double jeopardy rights,
so long as the defendant's aggregate sentence is not increased." Ibid. (citing
State v. Rodriguez, 97 N.J. 263, 277 (1984)). We thus remand for resentencing.
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Affirmed in part, vacated in part, and remanded in part for a further
sentencing proceeding consistent with this opinion. We do not retain
jurisdiction.
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24