NOT FOR PUBLICATION WITHOUT THE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-5117-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT J. KOSCH, JR.,
a/k/a ROBERT J. KOCH,
and ROBERT TAYLOR,
Defendant-Appellant.
_________________________
Submitted January 7, 2020 – Decided January 22, 2020
Before Judges Fisher and Rose.
On appeal from the 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 Cristina Jordao, Assistant
Prosecutor, on the brief).
PER CURIAM
This is now defendant's fourth appeal. In his first, we reversed three
convictions of theft of immovable property, leaving six other convictions intact.
State v. Kosch, 444 N.J. Super. 368 (App. Div.) (Kosch I), certif. denied, 227
N.J. 369 (2016). We remanded for a new trial on only the three affected charges
and for resentencing once there was a final disposition on those three charges.
Id. at 393. After that remand, the three charges were neither dismissed nor
retried; instead, the judge resentenced defendant on the six other convictions –
imposing the same aggregate sentence – and leaving the three unadjudicated
charges in abeyance. Defendant appealed the new judgment of conviction, and
we reversed because the judge failed to adhere to our mandate and
inappropriately resentenced defendant without disposing of the immovable-
property theft charges. State v. Kosch, 454 N.J. Super. 440, 444 (App. Div.
2018) (Kosch II). Following that remand, the State voluntarily dismissed the
immovable-property theft charges and defendant was resentenced, again
receiving the same aggregate twenty-year prison term. 1
1
When originally sentencing defendant, the judge created two groups of
convictions. In the first group, he imposed a fifteen-year extended term on one
of the immovable-property theft convictions (the first count), and concurrent
eight- or five-year terms on the others; in the second group, the judge imposed
concurrent five-year terms, but he also directed that the second group run
consecutively to the first, thereby crafting a twenty-year aggregate prison term
A-5117-18T2
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Defendant appealed a third time; we rejected his double jeopardy and due
process arguments, Kosch III, 458 N.J. Super. at 347, but we remanded again
because it did not appear sufficient consideration had been given to the absence
of the three immovable-property theft convictions, id. at 355-56. We then
rhetorically asked, "how can a defendant, who stands convicted of less than what
he was convicted when originally sentenced, deserve precisely the same
sentence?" Id. at 355. While we held that the state of the law did not foreclose
a principled determination that the same aggregate sentence was appropriate, we
could not find in the record the judge's analysis of the impact caused by the
absence of the three immovable-property theft matters that had formed part of
the original sentence. Ibid.
In Kosch III, we also recognized that our remand burdened the trial judge
with "a difficult and uncomfortable task" in light of his insistence on imposing
on multiple occasions the same aggregate sentence. Id. at 355-56 (quoting State
v. Henderson, 397 N.J. Super. 398, 416 (App. Div. 2008), aff'd and modified on
subject to a six-year period of parole ineligibility. Kosch I, 444 N.J. Super. at
377. Later, when resentencing defendant in light of the absence of the first count
due to the State's voluntary dismissal, and to reach the same aggregate sentence,
the judge imposed a fifteen-year extended term on the eleventh count on which
he had previously imposed only a seven-year ordinary term. State v. Kosch, 458
N.J. Super. 344, 348-49 (App. Div. 2019) (Kosch III), certif. denied, __ N.J. __
(Oct. 21, 2019).
A-5117-18T2
3
other grounds, 208 N.J. 208 (2011)). For that reason, we directed that another
judge resentence defendant. Id. at 356.
In a thorough resentencing proceeding, a different judge sentenced
defendant on the eleventh count to a fifteen-year extended prison term subject
to a six-year period of parole ineligibility, and concurrent lesser terms on the
other convictions. This reduced the aggregate term, from what was previously
imposed, by five years.
Defendant appeals, arguing:
I. THE SENTENCE IMPOSED BY THE COURT
DOES NOT PROPERLY CONSIDER THE
DIRECTIVE FROM THE APPELLATE DIVISION
TO ANAL[Y]ZE THE DEGREE TO WHICH
DEFENDANT'S OVERALL CULPABILITY
APPLIED TO THE NEW SENTENCE BY THE
ELIMINATION OF THE THREE VACATED
COUNTS.
I(A). DEFENDANT PRESENTED THE RESEN-
TENCING COURT WITH ERRORS IN THE
CONVICTION ON COUNT ELEVEN IN A
WRITTEN MEMORANDUM WHICH WOULD
AFFECT THE NEWLY IMPOSED SENTENCE
SUBMITTED FOR REVIEW CONSISTENT WITH
THE ANALYSIS OF THE REMAINING CULPA-
BILITY.
II. THE RELATIONSHIP BETWEEN THE
IDENTIFIERS AND THE VACATED COUNTS 1, 6
& 8, IN KOSCH I, FINALLY DISMISSED WITH
PREJUDICE BY THE STATE MORE THAN TWO
A-5117-18T2
4
YEARS AFTER REVERSAL AND REMAND FOR A
NEW TRIAL ARE INEXTRICABLY INTERTWINED
REQUIRING REVERSAL, OR DISMISSAL OF THE
EXTENDED TERM SENTENCE IN COUNT
ELEVEN AS NO OTHER INTEREST WAS
CHARGED IN THE INDICTMENT, OR PENDING
AGAINST THE DEFENDANT.
II(A). NOW THAT COUNTS ONE, SIX AND EIGHT
ARE DISMISSED WITH PREJUDICE, IT ALTERS
DRAMATICALLY THE OPINION AND POINTS
FOR REVERSAL IN KOSCH I, WARRANTING THE
APPELLATE COURT TO TAKE FURTHER ACTION
DISMISSING THE REMAINDER OF THIS CASE
AND THE RECENT SENTENCE NOW IN
OPERATION (NOT RAISED BELOW).
III. ALTHOUGH THE COURT REDUCED THE
DEFENDANT'S SENTENCE, THE COURT DID NOT
FULLY ADDRESS THE "REAL TIME
CONSEQUENCES" AS PROPOSED IN KOSCH III,
AS IT RELATED TO STATE V. LEIPE, 453 N.J.
SUPER. 126 ([APP. DIV.] 2017).
IV. EXTENDED TERM PUNISHMENT IS NOT
APPLICABLE HERE.
V. THE MAY 14, 2018 [TRIAL COURT ORDER
THAT DISMISSED THE IMMOVABLE-PROPERTY
THEFT COUNTS] DISMISSES ALL CONDUCT IN
THE THEFT COUNTS (NOT RAISED BELOW).
VI. THE APPELLATE DIVISION SHOULD
RETAIN[] ORIGINAL JURISDICTION IN THIS
MATTER PURSUANT TO RULE 2:10-5 (NOT
RAISED BELOW).
A-5117-18T2
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We find insufficient merit in these arguments to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
There is no question that defendant was extended-term eligible as a
persistent offender based on his considerable criminal record, and there was no
legal impediment to the judge's imposition of an extended term on a conviction
on which only an ordinary term was imposed, as we held in Kosch III, 458 N.J.
Super. at 353. All that was left following our last remand was a new sentencing
before a different judge and for that judge to take into consideration the fact that
defendant stood convicted of less wrongdoing than when he was originally
sentenced. We are satisfied that all that has occurred.
Affirmed.
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