STATE OF NEW JERSEY VS. D.C.N. (16-06-2019, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-1344-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.C.N.,1

Defendant-Appellant.
_________________________

Argued October 18, 2021 – Decided November 8, 2021

Before Judges Sumners and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-06-2019.

Scott M. Welfel, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Scott M. Welfel, of counsel
and on the brief).

Caitlinn Raimo, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens, II, Acting Essex

1
We use initials to protect the identity of the parties because this matter involves
an incident of domestic violence. R. 1:38-3(d)(10).
 County Prosecutor, attorney; Caitlinn Raimo, of
counsel and on the briefs).

PER CURIAM

Defendant D.C.N. appeals from an amended judgment of conviction and

sentence that were entered after a jury found him guilty of second-degree

burglary, N.J.S.A. 2C:18-2, the lesser-included offense of simple assault,

N.J.S.A. 2C:12-1(a), and third-degree terroristic threats, N.J.S.A. 2C:12-3(b).

The trial court sentenced defendant on September 17, 2018, to ten years'

imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,

to run consecutively to his seven-year sentence under Indictment Number 15-

01-22I2 for illegal gun possession. We affirm.

I.

Th evidence at trial showed that during the morning of February 8, 2016,

T.B. was at her home in East Orange with her three children: her son, D.I., then

thirteen years old; another son, D.Y., then nine years old; and B.C., an infant,

2
This appeal is calendared for November 1, 2021, under docket number A-
2737-18T4.

A-1344-18
2
defendant's biological daughter.3 As T.B. was getting ready to take her sons to

school that morning, she noticed the tires on her vehicle had been slashed.

T.B. went back inside her home with the children and texted defendant,

who denied slashing her tires. He stated he wanted to come over and bring a

pair of sneakers for B.C., but T.B. told him not to. Defendant responded he was

already parked across the street. T.B. opened her bedroom window and told him

to leave. Eventually, defendant placed the sneakers at the door of T.B.'s

residence and left the premises. Defendant continued to text T.B. and inquired

whether the sneakers fit B.C., and T.B. responded affirmatively.

A short time later, T.B. heard her chihuahua whimpering downstairs in

her house. As she walked down the stairs to tend to her dog, T.B. saw the first-

floor bathroom door close and then open, leading her to suspect someone had

entered her home. T.B. discovered defendant was the intruder, and she retreated

upstairs to her bedroom. She attempted to lock the bedroom door, but defendant

pushed it open, prompting her to call 9-1-1 while holding her phone behind her

back to avoid defendant seeing it. T.B. was hopeful that the 9-1-1 operator

3
D.I. and D.Y. have the same initials, D.E., so they are referred to by the first
two letters of their respective first names for clarity purposes. B.C. is an
abbreviation of the child's nickname, which is how the witnesses referred to her
in their testimony.
A-1344-18
3
would hear the interaction with defendant and dispatch officers to the scene to

assist her.

Defendant began yelling and cursing at T.B., accusing her of sleeping with

another man. T.B. asked D.I., who had been feeding B.C. in the room, to leave

so he would not hear defendant's profane language. Defendant then abruptly

punched T.B. in the left temple, causing her to see "white, like a bright, bright

white, and . . . it took [her] some time to . . . collect [her]self." T.B. later ended

up in a shelter, where she photographed her face, including her eye and temple

area, the day after the incident. The photograph depicted a black eye and a

"knot," which T.B. testified persisted at the time of trial.

Defendant then pulled up his pant leg, revealing a knife, and said "I came

here to slash your throat and kill you." T.B. grabbed defendant's hands and

looked him in the eyes in an attempt to calm him down. She also called for her

sons to come in the room hoping they would help her to calm defendant. The

sons' presence did not alleviate defendant's agitated state, therefore, T.B. told

the children to leave and return to their room.

T.B. and defendant then "went into another room," and he "kept shushing

for [T.B.] to be quiet." T.B. noticed defendant was wearing latex gloves, which

frightened her. She said to defendant "well, since you said you did not slash the

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tires can you please help me fix it[?] Let's go outside." After defendant walked

out of the house, T.B. quickly telephoned her mother and told her to call the

police. Defendant returned to get T.B. and the two walked outside towards her

vehicle.

Less than five minutes later, the police arrived at the scene. Officer

Clothy Isabel Ortiz approached T.B. and defendant, who were inspecting T.B.'s

tires. Officer Ortiz remained separated from the two by a small fence and asked

T.B. whether she was all right. Because T.B. was concerned defendant could

still attack her before Officer Ortiz could react and navigate the fence, T.B.

verbally responded that everything was fine but gave the Officer a look of panic.

Officer Ortiz noted that T.B.'s tires were slashed, recognized the "fear in her

eyes," and moved T.B. away from defendant so they could speak privately. T.B.

pulled back her hair and showed Officer Ortiz the bruise on her face where

defendant had punched her and told the Officer she was "scared [defendant]'s

gonna kill me." Officer Ortiz signaled to her partner, Officer Eric Rodriguez,

to stand by defendant. Officer Rodriguez detained defendant and performed a

protective pat down search, which revealed latex gloves, but no knife or other

weapon on his person.

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5
 T.B. and Officer Ortiz entered the home, and the Officer noted the door

to the back of the house had been broken into, evidenced by the broken lock.

Upon exiting the home, Officer Ortiz signaled to Officer Rodriguez to place

defendant under arrest. Officer Ortiz then reentered the home and T.B.

explained the interactions that had taken place earlier in the day with defendant.

Officer Ortiz asked T.B. to gather her children, which she did, and they left

together. Officer Rodriguez transported defendant to police headquarters, where

he was interviewed by Detective Phillip Reed. Defendant gave a statement after

waiving his Miranda4 rights.

T.B. and her children arrived at police headquarters with Officer Ortiz,

who encouraged her to find a safe place to stay. T.B. asked for assistance in

obtaining a restraining order against defendant and temporary housing.

Ultimately, Officer Ortiz found a shelter for T.B. and her children. At the

shelter, T.B. experienced difficulty eating because her bottom teeth felt loose

because of the blow to her temple.

Defendant was charged with second-degree burglary, N.J.S.A. 2C:18-2

(count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count

two); two counts of second-degree endangering the welfare of a child, N.J.S.A.

4
Miranda v. Arizona, 384 U.S. 436 (1966).
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2C:24-4(a) (counts three and four); third-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a) (count five); and third-degree terroristic threats,

N.J.S.A. 2C:12-3(b) (count six).

Prior to trial, the court conducted a Rule 104 hearing to ascertain the

admissibility of defendant's statements to the police and the validity of his

Miranda waiver, which were denied and are not challenged on appeal. Officers

Ortiz and Rodriguez, T.B., D.I., and D.Y. testified at trial. Initially, defendant

chose to testify, but after further consultation with his counsel, he decided

against doing so. After the State rested, defendant moved for a judgment of

acquittal as to each of the six counts of the indictment. The trial court granted

the motion as to counts three, four, and five, and denied the motion as to counts

one, two, and six.

On May 2, 2018, the jury was charged and began deliberating. The

following day, juror number one was discharged for medical reasons and

replaced by alternate juror number three. The next day, at 4:05 p.m., the jury

foreperson sent a note to the court indicating a verdict had been reached. The

foreperson read the verdict in open court, finding defendant guilty of count one

(burglary), guilty of the lesser-included offense of simple assault as to count

two, and guilty on count six (terroristic threats). In addition, the foreperson

A-1344-18
7
indicated the verdict was unanimous; however, when the court polled the jury,

juror number three replied "I'm not sure" when asked whether that juror agreed

with the verdict.

The trial court then asked the jury to return to the jury room for further

deliberations. At 5:07 p.m. a verdict had yet to be reached, prompting the trial

court to bring the jury back into the courtroom. They were instructed:

You're going to go back into the jury room and you're
going to write me a note. And that note is going to say
one of two words; stay or go. Stay the [c]ourt will take
to mean that you believe it may be fruitful to stay now.
Go would mean you're coming back tomorrow at 9:00.
Those are the alternatives; stay or go. Please go into
the jury room and we will await your note.

At 5:15 p.m. the jury returned a note reading "stay," and at 5:25 p.m. the jury

returned another note indicating a verdict had been reached. The verdict

matched the one previously announced, and this time all of the jurors indicated

they agreed with the verdict.

Defendant was sentenced and this appeal ensued. On appeal, defendant

presents the following arguments for our consideration:

POINT I

THE COURT'S RESPONSE TO THE
NONUNANIMOUS VERDICT—OUTING JUROR
[THREE] AS THE SOLE DISSENTER, FAILING TO

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8
 GIVE A CZACHOR5 CHARGE, AND ASKING THE
JURORS IF THEY WANTED TO DELIBERATE
PAST 5:00 P.M.—WAS COERCIVE. (Not Raised
Below).

POINT II

DEFENDANT'S CONVICTIONS MUST BE
REVERSED BECAUSE THE COURT ERRED IN
FAILING TO CHARGE THE LESSER-INCLUDED
OFFENSE OF CRIMINAL TRESPASS, WHICH WAS
CLEARLY INDICATED BY THE EVIDENCE. (Not
Raised Below).

POINT III

A REMAND FOR RESENTENCING IS REQUIRED
BECAUSE THE TRIAL COURT ERRED IN
FINDING AND WEIGHING AGGRAVATING
FACTORS THREE, NINE, AND FOURTEEN, AND
FAILED TO ASSESS THE FAIRNESS OF THE
OVERALL SENTENCE AS PART OF ITS
YARBOUGH6 ANALYSIS.

A. The Court's Finding Of Aggravating Factor
Fourteen Was Error Because T.B.'s Children Were Not
Present During The Assault Or Threats.

B. The Court[] Failed To Assess The Fairness Of The
Overall Sentence As Part Of Its Yarbough Analysis.

C. Once The Court Had Determined To Run This
Sentence Consecutive To The Sentence For Indictment
15-01-222-I, It Erred In Relying On Aggravating

5
State v. Czachor, 82 N.J. 392 (1980).
6
State v. Yarbough, 100 N.J. 627 (1985).
A-1344-18
9
 Factors Three And Nine To Justify A Top-Range
Sentence.

II.

Defendant's first point on appeal claims that the trial court 's reaction to

juror number three responding "not sure" when polled was unduly coercive.

Specifically, defendant asserts the trial court pressured juror number three by:

(1) polling the other jurors and publicly outing juror number three as the sole

dissenter; (2) directing the jury to continue deliberating without giving a

Czachor7 charge; and (3) interrupting deliberations by directing the jury to return

a note indicating "stay" or "go."

Since defendant did not raise these arguments at trial, he must prove plain

error that was "clearly capable of producing an unjust result." R. 2:10-2. "Plain

error is a high bar." State v. Santamaria, 236 N.J. 390, 404 (2019). "The 'high

7
The charge is given to the jury when the court is informed they may be
deadlocked. See State v. Ross, 218 N.J. 130, 143-45 (2014); State v. Figueroa,
190 N.J. 219, 231-39 (2007). Usually, upon being so notified, a court will
charge the jury in accordance with the Model Jury Charge (Criminal), "Judge's
Inquiry When Jury Reports Inability to Reach Verdict" (2013), as follows:

You have indicated that your deliberations have
reached an impasse. Do you feel that further
deliberations will be beneficial, or do you feel that you
have reached a point at which further deliberations
would be futile? Please return to the jury room to
confer, and advise me of your decision in another note.
A-1344-18
10
standard' used in plain error analysis 'provides a strong incentive for counsel to

interpose a timely objection, enabling the trial court to forestall or correct a

potential error.'" Ibid., (quoting State v. Bueso, 225 N.J. 193, 203 (2016)).

Where a defendant raises a new issue on appeal, he "bears the burden of

establishing that the trial court's actions constituted plain error." Id. at 404-05.

A trial court is not prohibited from interrupting deliberations to inquire

about time-management concerns. See State v. Barasch, 372 N.J. Super. 355,

361-62 (App. Div. 2004). Whether the interruption amounted to coercion must

be examined on a case-by-case basis. Id. at 362. As a general matter, coercion

will more likely happen when the court sets or implies a deadline for

deliberations. See State v. Nelson, 304 N.J. Super. 561, 566 (App. Div. 1997).

When the court simply inquires about the anticipated amount of time a jury will

need to continue deliberations, coercion is less likely. See State v. Tarlowe, 370

N.J. Super. 224, 238 (App. Div. 2004).

The right to a unanimous verdict is an essential component of the

defendant's right to a jury trial. State v. Milton, 178 N.J. 421, 431 (2004); see

also R. 1:8-9 (establishing that verdicts in all criminal actions must be

unanimous). "Further, under New Jersey [l]aw[,] it is well[-]established that

'the accused has an absolute right to have the jury polled.'" State v. Rodriguez,

A-1344-18
11
254 N.J. Super. 339, 349 (App. Div. 1992) (quoting State v. Schmelz, 17 N.J.

227, 232 (1955)). Rule 1:8-10 governs situations such as this. The rule states:

Before the verdict is recorded, the jury shall be polled
at the request of any party or upon the court's motion
. . . . If the poll discloses that there is not unanimous
concurrence in a criminal action . . . the jury may be
directed to retire for further deliberations or discharged.

While it is appropriate "to inquire of the jury whether further deliberations

will likely result in a verdict . . . it is not always necessary for the trial court to

do so." Figueroa, 190 N.J. at 240 (citations omitted). Moreover, a "[f]ailure to

timely object to either the lack of a poll of the jurors or a defect in the polling

constitutes a waiver of rights." Rodriguez, 254 N.J. Super. at 349 (citing State

v. Ward, 57 N.J. 75, 79 (1970)); see also Figueroa, 190 N.J. at 241 n. 10 (noting

a defendant's "fail[ure] to object to the charge when given, result[s] in [the

appellate court's] application of a plain error analysis.").

A trial court also has discretion "to decide whether repeating the [jury]

charge [on further deliberations] is appropriate when a jury . . . is unable to

agree." Id. at 235. The decision can be based on "such factors as the length and

complexity of trial and the quality and duration of the jury's deliberations."

Czachor, 82 N.J. at 407. In State v. DiFerdinando, 345 N.J. Super. 382, 393

A-1344-18
12
(App. Div. 2001), we concluded that two days and one hour of deliberations did

not constitute a sufficient length of time to require a repeated Czachor charge.

Here, the trial court posed a question to both parties as to whether they

wanted the jury to return to the jury room to deliberate on May 3, and both

parties agreed. The record shows the trial court and counsel for each party

agreed to inquire of the jury whether they wanted to stay and continue

deliberating or leave and return the next day, and neither party objected. After

the court advised the jury of their choice, the parties each indicated they had no

objection to the process. Polling the entire jury was appropriate here and

permitted the trial court to make its discretionary decision as to further

deliberations. Under these circumstances, there was nothing inappropriate about

the court's comments or procedure and there was no plain error. We have no

doubt the trial court asked the note to be returned with "stay" or "go" solely for

"trial management reason[s]" and out of "courtesy" to the jury. Barasch, 372

N.J. Super. at 362.

Moreover, the trial court was not obliged to repeat the Czachor charge.

This was a relatively short trial—less than two full days of testimony. The trial

court provided the jury with a copy of the charge during their deliberations. The

jury had barely been deliberating for one day, and there was no indication they

A-1344-18
13
were intensely deadlocked. In any event, "[n]o matter how complicated the case,

brevity in jury deliberations is not, in itself, a basis for scuttling a verdict."

Veranda Beach Club Ltd. P'ship v. W. Sur. Co., 936 F.2d 1364, 1383 (1st Cir.

1991) (denying relief where deliberations lasted fifteen minutes) (citations

omitted); accord U.S. v. Cunningham, 108 F.3d 120, 123 (7th Cir. 1997)

(denying relief where deliberations lasted ten minutes); Paoletto v. Beech

Aircraft Corp., 464 F.2d 976, 983 (3d Cr. 1972). "Brief deliberation, by itself,

does not show that the jury failed to give full, conscientious or impartial

consideration to the evidence." Wilburn v. Eastman Kodak Co., 180 F.3d 475,

476 (2d Cir. 1999) (denying relief where deliberations lasted twenty minutes);

see, e.g., Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super. 278, 292 (App. Div.

2016). Because defendant fails to show the trial court was obligated to reiterate

the Czachor charge, there was no plain error. See R. 2:10-2.

III.

Defendant also argues, for the first time on appeal, that the trial court erred

in failing to instruct the jurors on criminal trespass, a lesser-included charge of

burglary. Defendant contends he entered T.B.'s home to see if the sneakers he

dropped off for B.C. fit, thus, he was not entering the home with the intent to

commit a crime, an element of the burglary charge. Again, we disagree.

A-1344-18
14
 At the outset, we observe that "[w]hen a defendant fails to object to an

error or omission [about a jury charge] at trial, we review for plain error . . . .

'unless it is of such a nature as to have been clearly capable of producing an

unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2).

Reversal is warranted only where an error raises "a reasonable doubt . . . as to

whether the error led the jury to a result it otherwise might not have reached."

Ibid. (alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).

"The mere possibility of an unjust result is not enough." Ibid. In our review of

a trial judge's instructions, if a defendant does not object to an instruction at

trial, we "presume[] that the instructions were adequate." State v. Belliard, 415

N.J. Super. 51, 66 (App. Div. 2010) (quoting State v. Morais, 359 N.J. Super.

123, 134-35 (App. Div. 2003)).

In its jury charges, a "trial [judge] must give 'a comprehensible

explanation of the questions that the jury must determine, including the law of

the case applicable to the facts . . . the jury may find.'" State v. Baum, 224 N.J.

147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).

Accordingly, "the [judge] has an 'independent duty . . . to ensure that the jurors

receive accurate instructions on the law as it pertains to the facts and issues of

each case, irrespective of the particular language suggested by either party.'"

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15
Ibid. (alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613

(2004)).

"[I]f the parties do not request a lesser-included offense charge, reviewing

courts 'apply a higher standard, requiring the unrequested charge to be "clearly

indicated" from the record.'" State v. Fowler, 239 N.J. 171, 188 (2019) (quoting

State v. Alexander, 233 N.J. 132, 143 (2018)). Further, there must be a rational

basis "to acquit defendant of the greater[-included] offense," before a court is

required to deliver the lesser charge. N.J.S.A. 2C:1-8(e); see e.g., State v.

Denofa, 187 N.J. 24, 41-42 (2006). As such,

[t]he "clearly indicated" standard does not require trial
[judges] either to "scour the statutes to determine if
there are some uncharged offenses of which the
defendant may be guilty," or "'to meticulously sift
through the entire record . . . to see if some combination
of facts and inferences might rationally sustain' a lesser
charge." Instead, the evidence supporting a lesser-
included charge must "jump[] off the page" to trigger a
trial [judge's] duty to sua sponte instruct a jury on that
charge.

[Alexander, 233 N.J. at 143 (third and fourth alterations
in original) (citations omitted).]

It is well settled that criminal trespass is a lesser-included offense of

burglary. State v. Clarke, 198 N.J. Super. 219, 225-26 (App. Div. 1985). Both

criminal trespass and burglary require the State to establish that a defendant

A-1344-18
16
entered a structure without a license or privilege to do so. See N.J.S.A. 2C:18-

2; N.J.S.A. 2C:18-3(a). Burglary, however, requires proof of an additional

element: that the defendant enter the structure with the intent to commit an

offense therein. See N.J.S.A. 2C:18-2; State v. Singleton, 290 N.J. Super. 336,

341 (App. Div. 1996).

Our review of the record reveals no rational basis permitting a jury to

convict defendant of fourth-degree criminal trespass under N.J.S.A. 2C:18-3(a)

instead of burglary, N.J.S.A. 2C:18-2. Defendant presented no evidence to

support his theory that his purpose in entering T.B.'s home was to ensure the

sneakers he dropped off for B.C. fit her properly. The record shows defendant

was previously told by T.B. that the sneakers fit. And, prior to charging the

jury, the trial court spoke informally with counsel for each party and counsel

agreed "there would be no rational basis" to include "criminal trespass as a lesser

included offense of the burglary count or harassment as [the] lesser included

offense of the terroristic threats count."

Based on this consensus, the trial court stated, "then because of the parties'

positions and their views of the evidence, there would be no sua sponte

obligation for the [c]ourt to charge those lesser[-included offenses] and the

[c]ourt did not." Applying the principles enunciated earlier, we find no error in

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17
the court's failure to charge fourth-degree criminal trespass under N.J.S.A.

2C:18-3(a) because we are not convinced the evidence clearly indicated the

appropriateness of the charge.

IV.

Finally, defendant claims the sentencing court erred in finding

aggravating factors two (N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness of

the harm defendant inflicted on the victim); three (N.J.S.A. 2C:44-1(a)(3) (the

risk defendant will commit another offense); six (N.J.S.A. 2C:44-1(a)(6) (the

extent of the defendant's prior criminal record and the seriousness of the

convicted offenses); nine (N.J.S.A. 2C:44-1(a)(9) (the need for deterring

defendant others from violating the law); and fourteen (N.J.S.A. 2C:44-1(a)(14)

(the need to deter defendant and others from violating the law), and failed to

consider the Yarbough guidelines that are used to determine whether to impose

concurrent or consecutive sentences. 8 In the matter under review, defendant was

sentenced to an aggregate term of ten years' imprisonment subject to NERA to

run consecutively to his seven-year term with a three-and-a-half period of parole

ineligibility under Indictment Number 15-01-22I. On September 26, 2018, the

8
Defendant submitted a supplemental brief on May 17, 2021, referencing our
Court's recent opinion in State v. Torres, 246 N.J. 246 (2021).
A-1344-18
18
trial court issued an amended judgment of conviction to remove jail credit

previously and erroneously awarded contrary to State v. C.H., 228 N.J. 111

(2017). In his supplemental brief, defendant argues the holding in Torres should

be applied retroactively to his case and entitles him to a new sentencing hearing.

The scope of our review of sentencing decisions is narrow. As a general

matter, sentencing decisions are reviewed under a highly deferential standard.

See State v. Roth, 95 N.J. 334, 364-65 (1984) (holding that an appellate court

may not overturn a sentence unless "the application of the guidelines to the facts

of [the] case makes the sentence clearly unreasonable so as to shock the judicial

conscience.") Our review is therefore limited to considering:

(1) whether guidelines for sentencing established by the
Legislature or by the courts were violated; (2) whether
the aggravating and mitigating factors found by the
sentencing court were based on competent credible
evidence in the record; and (3) whether the sentence
was nevertheless "clearly unreasonable so as to shock
the judicial conscience."

[State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State
v. McGuire, 419 N.J. Super. 88, 158 (App. Div.
2011)).]

"[A]ppellate courts are cautioned not to substitute their judgment for those

of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v.

Lawless, 214 N.J. 594, 606 (2013)). Similarly, a trial court's exercise of

A-1344-18
19
discretion that is in line with sentencing principles "should be immune from

second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010).

We first address whether the sentencing court erred in directing the

sentence imposed under Indictment Number 16-06-2019 be served

consecutively to the sentence imposed under Indictment Number 15-01-22I on

the gun possession conviction. In Yarbough, the Supreme Court noted "there

can be no free crimes in a system for which the punishment shall fit the crime."

100 N.J. at 643. The Court listed relevant considerations, including 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;

(e) the convictions for which the sentences are to be
imposed are numerous.

[Id. at 644.]

In Torres, our Court reiterated "that while Yarbough guides a court's

sentencing decision, it does not control it." 264 N.J. at 269. That conclusion

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comports with the major tenet in State v. Cuff, a sentencing court's focus "should

be on the fairness of the overall sentence." 239 N.J. 321, 352 (2019) (citing

State v. Miller, 108 N.J. 112, 121 (1987)); see also Torres, 246 N.J. at 270

(holding an "evaluation of the fairness of the overall sentence is 'a necessary

feature in any Yarbough analysis.'" (quoting Cuff, 239 N.J. at 352)). We agree

with the sentencing court that in the particular circumstances of this case, the

criminal act of illegal gun possession was independent of the charges the jury

found defendant guilty of in the present matter and is supported by our Court's

holdings in Yarbough and Torres.

Here, the sentencing court properly addressed and analyzed each

aggravating and mitigating factor, finding the aggravating factors preponderated

and no mitigating factors applied. We discern no abuse in the sentencing court's

discretion nor did the sentence it imposed shock our judicial conscience. The

court sentenced defendant in accordance with the sentencing guidelines. We

have no cause to disturb defendant's sentence.

To the extent we have not addressed any of defendant's arguments, it is

because we have concluded they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-1344-18
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