STATE OF NEW JERSEY VS. MARCOS R. BLANDINO (17-08-0553, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-5901-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCOS R. BLANDINO a/k/a
MARCOS RAFAEL BLANDINO,

Defendant-Appellant.

Submitted October 12, 2021 – Decided November 24, 2021

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-08-0553.

Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).

Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).

PER CURIAM
 Tried to a jury, defendant Marcos R. Blandino was convicted of forcibly

entering a stranger's apartment in Hoboken around 6:00 p.m. on Sunday, April

23, 2017, and groping her against her will. Following the jury's guilty verdict

on third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), as a

lesser-included offense of first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(3) (counts one and two), and second-degree burglary, N.J.S.A.

2C:18-2(a)(1) (count three), defendant was sentenced to an aggregate fifteen -

year prison term. The trial judge imposed concurrent five-year prison terms on

the sexual contact offenses to be served prior to a consecutive ten-year prison

term on the burglary conviction. Defendant's sentence on the burglary

conviction, only, is subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

During the ten-day trial, the State presented the testimony of fourteen

witnesses, including the victim, K.O. (Katrina),1 and her two roommates, who

found Katrina curled in a fetal position after the attack. Surveillance video

footage captured defendant's minivan traveling down Katrina's block as she

1
We use initials to protect the privacy of the victim and pseudonyms for ease
of reference. See R. 1:38-3(c)(12).

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2
walked toward her apartment building; Katrina entering the building; and

defendant following moments later.

Katrina told the jury she did not observe defendant until he was standing

next to her outside her apartment door. As she opened the door, defendant

pushed Katrina into the apartment, causing her to fall to the floor. Defendant

pulled down Katrina's pants, held her down, and touched her vagina with his

finger and penis. Katrina kicked and screamed, and eventually defendant left.

According to the surveillance video, defendant exited the apartment

building five minutes after he entered. Police reviewed the surveillance video

and issued a "be on the lookout" (BOLO) advisory for defendant's minivan. The

following Sunday, Hoboken police stopped defendant, while he was driving the

minivan, which matched the BOLO description.

Defendant was not under arrest, but he waived his Miranda2 rights and

voluntarily agreed to give a statement to members of the Hudson County

Prosecutor's Office (HCPO). Police told defendant they were investigating

"something" that had occurred the previous week. Acknowledging he had been

in Hoboken on April 23, defendant claimed he only made one stop at the "Hindu

store," which he "always" patronized when his Lyft job brought him to the area.

2
See Miranda v. Arizona, 384 U.S. 436 (1966).
A-5901-17
3
But shortly after defendant was shown photographs of his minivan from the

surveillance video, defendant invoked his right to counsel and all questioning

about the incident ceased.

At trial, the State introduced defendant's video-recorded statement, which

was made in defendant's primary language of Spanish. Accordingly, the trial

judge provided English transcripts to the jury as listening aids when the

statement was played in open court. Because the transcripts were not admitted

in evidence, the judge did not provide them to the jury during deliberations.

Defendant testified on his own behalf, denying Katrina's account. Instead,

defendant claimed Katrina – about twenty years his junior and someone he had

not previously met – invited him into her home and attempted to have sex with

him. Defendant said he returned Katrina's kiss but froze when "she put her

vagina in [his] face." He left soon thereafter.

Defendant now appeals, arguing:

POINT I

DEFENDANT'S CONVICTION FOR SECOND-
DEGREE BURGLARY MUST BE REVERSED.

A. The Trial Court's Instructions to the Jury Directed a
Verdict on an Element of Burglary and Thereby
Improperly Relieved the State of its Constitutional
Burden of Proving Guilt Beyond a Reasonable Doubt.
(Not raised below)

A-5901-17
4
B. After the Jury Verdict the Trial Court Sua Sponte
Should Have Exercised Its Discretion Pursuant to
R[ule] 3:18-2 by Entering a Judgment of Acquittal.
(Not raised below)

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL DUE TO THE COURT'S FAILURE TO
PROPERLY WARN THE JURY TO DISREGARD
DEFENDANT'S ASSERTION OF HIS RIGHT TO
REMAIN SILENT.
(Not raised below)

POINT III

[]DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL BECAUSE THE JURY CONSIDERED
HIS PRIOR STATEMENT, WHICH WAS PLAYED
IN OPEN COURT IN SPANISH WITH AN ENGLISH
TRANSCRIPT, BUT THE ENGLISH
TRANSLATION WAS NOT ADMITTED INTO
EVIDENCE.
(Not raised below)

POINT IV

THE SENTENCE OF THE MAXIMUM TERMS IN
PRISON ON EACH COUNT AND RESULTING IN
FIFTEEN YEARS IN PRISON WITH [AN] EIGHT
AND ONE-HALF[-]YEAR[] PERIOD OF PAROLE
INELIGIBILTY WAS EXCESSIVE BECAUSE THE
COURT ERRED IN APPLYING AGGRAVATING
SENTENCING FACTORS ONE AND TWO[, N.J.S.A.
2C:44-1(a)(1) and (2)].

A-5901-17
5
 For the reasons that follow, we affirm defendant's convictions and remand

for resentencing.

I.

Initially, we consider the arguments asserted in point II. For the first time

on appeal, defendant argues the trial judge committed reversible error by

including the invocation of defendant's right to counsel when his statement to

police was introduced in evidence. Acknowledging the final jury charge

included a limiting instruction regarding defendant's invocation, he argues the

instruction should have accompanied the offending statement when it was

received in evidence. Because defendant neither objected to admission of the

statement nor requested a cautionary instruction at trial, we review his newly -

minted challenges through the prism of the plain error standard. R. 2:10-2.

Defendant invoked his right to counsel after police presented photographs

from the surveillance video depicting his minivan outside Katrina's apartment

building, and police told defendant the victim's description of her assailant was

"precisely a description of [him]." At issue is the following excerpt of

defendant's exchange with police:

LIEUTENANT: []It's important that you provide an
explanation here regarding what happened. It's the only
thing I'm asking you sir. We already know what
happened, so. I wish you can go back one week, years,

A-5901-17
6
 months, and we would be able to change many things,
but we can't. We can't but already [sic] what happened,
happened and we have to see forward, towards the
future, okay and its important. The only thing that we
ask you is that you say the truth that's all. Explain to
me what happened; tell me.

DEFENDANT: For me to explain anything I would
like to come with an attorney. I don't . . . I don't have
the desire to explain anything that may have happened
with him [sic] you can ask me what you want to ask me.
Obviously, it's my vehicle; I was there because it's my
vehicle. I don't know what that person may have said.
I don't want to say anything.

At the conclusion of the court's final instructions to the jury, at request of

the State, the judge issued a limiting instruction:

You've heard the defendant invoked his right to
an attorney at the end of his statement to the
prosecutor's office on April 30th. You also heard at the
beginning of the statement the detective explained to
him that he had a right to an attorney, the right to remain
silent, and other rights.

These are his rights as guaranteed by the United
States and New Jersey State Constitutions. You cannot
draw any negative inference from the defendant's
exercise of his constitutional rights.

In State v. Feaster, 156 N.J. 1, 73-77 (1998), our Supreme Court

considered whether a jury should be permitted to hear the defendant invoke his

right to silence. As a general principle, the Court held trial judges "should

endeavor to excise any reference to a criminal defendant's invocation of his right

A-5901-17
7
to counsel." Id. at 75. Nonetheless, the Court found permissible the admission

of such statement where it "is essential to the complete presentation of the

witness's testimony and its omission would be likely to mislead or confuse th e

jury." Id. at 76. In that situation, the trial court must give a cautionary

instruction to guard against any impermissible inferences. Ibid.

However, "a trial court's failure to follow the Feaster stricture of excision

or a cautionary instruction does not necessarily equate to reversible or plain

error." State v. Sui Kam Tung, 460 N.J. Super. 75, 94 (App. Div.), certif. denied,

240 N.J. 249 (2019). As we explained in Tung:

The Feaster Court found the error of failing to excise
the reference or provide a cautionary instruction was
harmless due to "the fleeting nature of the reference" in
testimony, the fact that the prosecutor "did not
comment on the matter during summation," and the trial
judge's "emphatic instruction" that defendant's failure
to testify could not be held against him, which
"impart[ed] to the jury the respect to be accorded
defendant's decision to remain silent."

[Id. at 94 (quoting Feaster, 156 N.J. at 77).]

In the present matter, defendant's invocation demonstrated why the

questioning ceased and, as such, was properly admitted at trial. The prosecutor

neither elicited any testimony about defendant's invocation from the detective

through whom the statement was introduced at trial, nor commented on

A-5901-17
8
defendant's right during summation. Instead, the prosecutor urged the court to

issue the curative instruction, albeit belatedly. See State v. Herbert, 457 N.J.

Super. 490, 505-06 (App. Div. 2019) (citations omitted) (reiterating the

principle that "a swift and firm instruction is better than a delayed one"). Thus,

although not requested by defendant, the trial judge should have issued the

limiting instruction when defendant's statement was played for the jury.

Nonetheless, we do not find plain error here. The exchange by defendant

that terminated the interview was brief; the prosecutor did not comment on it

during summation; defendant's attorney never objected; and the judge

specifically instructed the jury to refrain from "draw[ing] any negative inference

from the defendant's exercise of his constitutional rights." We presume the jury

followed the trial judge's instructions. See State v. Vega-Larregui, 246 N.J. 94,

126 (2021).

II.

For the first time on appeal in point III, defendant asserts the trial judge

sua sponte failed to admit in evidence the English-language translation of his

statement to police, which was conducted entirely in Spanish and played for the

jury in that form. Defendant argues because the jury "was never presented with

evidence of defendant's statement that was in a form that the jury could

A-5901-17
9
understand," the jury was unable to consider his "denial of culpability." We are

unpersuaded.

Defendant's statement was admitted in evidence through the testimony of

HCPO Detective Paola Bolivar – one of two Spanish-speaking officers, who

questioned defendant. Prior to playing the video for the jury, Bolivar testified

she had previously reviewed the English-language transcript of defendant's

statement and that it was "accurate in terms of substance." The transcript was

marked for identification and copies were distributed to the jury. The prosecutor

then instructed the detective to "follow along and let [everyone] know when to

turn the page."

Prior to the distribution of the transcripts to the jurors, defense counsel

expressly indicated she had "no objection." The prosecutor then confirmed in

open court that the transcripts would "be used as an aid for the jury." Later, at

the conclusion of the judge's final instructions and before the evidence was

provided to the jury, the prosecutor advised the judge that counsel agreed "the

transcript will . . . not go to the jury room. We'll hold that if they want to watch

the [video]." The judge concurred, stating: "It's not evidence."

Our court rules generally permit members of the jury to "take into the jury

room the exhibits received in evidence." R. 1:8-8. Thus, exhibits that are

A-5901-17
10
marked for identification but not moved in evidence ordinarily should not be

provided to the jury. We have long recognized "a transcript may be used as an

aid for understanding a tape recording." State v. DeBellis, 174 N.J. Super. 195,

199 (App. Div. 1980); see also State v. Zicarelli, 122 N.J. Super. 225, 239-40

(App. Div. 1973). The decision whether to provide the transcript to the jurors

during their deliberations lies within the trial court's sound discretion. See

DeBellis, 174 N.J. Super. at 199.

In DeBellis, we discerned no error in the trial court's decision to provide

transcripts of the defendant's recorded statements, where among other factors,

witnesses testified to their accuracy; the defendants did not deny their accuracy;

the judge issued a limiting instruction on the use of the transcript; and "the jury

had already seen the transcripts." Ibid. Those factors similarly apply here,

especially where defendant's statement was made in Spanish and the translated

transcript assisted the jurors in comprehending the statement.

Notably, however, in DeBellis, the trial court also believed it "had

unintentionally deceived [the] defendants into believing that the transcripts

would go into evidence." Ibid. Conversely, in the present matter, the parties

agreed that the transcripts would not be provided to the jurors during

A-5901-17
11
deliberations unless they asked to replay the video-recorded statement. 3

Because the jury was provided with an English transcription of defendant's

statement when the video recording was played during trial, the jury was

presented with defendant's denial of fault, which they again heard when he

testified. Even if the judge abused his discretion by not providing the transcripts

to the jury during their deliberations, that decision was not "clearly capable of

producing an unjust result." R. 2:10-2.

III.

A.

Little need be said regarding the belated contentions raised in point I,

challenging the trial court's instructions on burglary and the sufficiency of the

evidence supporting the jury's verdict on that charge. Defendant initially asserts

error in the following portion of the burglary instruction:

Purpose, with purpose and similar words have the
same meaning. In other words, in order for you to find
the defendant acted purposely, the State must prove
beyond a reasonable doubt that it was his conscious
object at the time he unlawfully entered . . . the
premises to commit an unlawful act.

3
We presume playback of the video-recorded statement would have proceeded
in open court. See State v. A.R., 213 N.J. 542, 546 (2013).
A-5901-17
12
 Defendant claims the emphasized language advised the jury "to assume"

he was not privileged or licensed to enter Katrina's residence, thereby relieving

the State of its obligation to prove defendant entered Katrina's residence without

permission and negating his consent defense. Defendant's argument is belied by

the entirety of the trial judge's instructions, which largely tracked the model jury

charge. See Model Jury Charges (Criminal), "Burglary in the Second Degree

(N.J.S.A. 2C:18-2(b))" (rev. Mar. 14, 2016).

Prior to defining "purpose," – and consistent with the model jury charge

and the burglary statute – the judge aptly instructed the jury on the elements of

burglary: "In order for you to find the defendant guilty of burglary, the State

must prove beyond a reasonable doubt the following elements: the defendant

entered the structure known as K[atrina]'s apartment without permission; that

the defendant did so with the purpose to commit an offense therein." (Emphasis

added). See ibid.; N.J.S.A. 2C:18-2(a)(1). A jury charge that tracks the

language of the governing statute, and is consistent with the applicable model

jury charge, is not plainly erroneous. See State v. Rodriguez, 365 N.J. Super.

38, 53-54 (App. Div. 2003).

A-5901-17
13
 B.

Defendant further contends the trial judge erred in sua sponte failing to:

dismiss the burglary count at the conclusion of the State's case, R. 3:18-1; or

enter a judgment of acquittal notwithstanding the verdict, R. 3:18-2. Noting

there was no evidence of forced entry, defendant argues "it was possible" he and

Katrina "were already inside the apartment when she was pushed." Defendant's

delayed argument fails under both Rules.

"At the close of the State's case or after the evidence of all parties has been

closed, the court shall, on defendant's motion or its own initiative," enter a

judgment of acquittal "if the evidence is insufficient to warrant a conviction."

R. 3:18-1. A trial judge may also enter a judgment of acquittal after a jury has

returned a guilty verdict. R. 3:18-2; see Pressler & Verniero, Current N.J. Court

Rules, cmt. 1 to R. 3:18-2 (2021). Under Rule 3:18-1, the trial judge must

determine whether, viewing the evidence in its entirety and "giving the State the

benefit of all favorable testimony as well as all . . . favorable inferences which

reasonably could be drawn therefrom, a reasonable jury could find guilt of the

charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).

"When a defendant moves for a judgment of acquittal after all the proofs,

however, the court considers not only the evidence presented by the State, but

A-5901-17
14
'the entirety of the evidence.'" State v. Lodzinski, 246 N.J. 331, 357 (2021),

(Patterson, J., concurring) (quoting State v. Williams, 218 N.J. 576, 594 (2014)).

Here, the State presented sufficient evidence that defendant committed

second-degree burglary under N.J.S.A. 2C:18-2(b)(1), where "in the course of

committing the offense," he "[p]urposely, knowingly or recklessly inflict[ed]

. . . bodily injury on [Katrina]." Katrina testified that, upon reaching her

apartment door, she realized someone was behind her. After unlocking the door

and pushing it, she turned toward defendant, asking: "What are you doing?" At

that point, defendant pushed Katrina into the apartment, causing her to fall to

the living room floor. Katrina told the jury "[i]t hurt" when she fell on the floor.

She described a "big struggle" which preceded the sexual offenses. Katrina

testified she never gave defendant permission to enter her apartment – or

anywhere inside the building.

Katrina's testimony, in addition to the surveillance footage, provided

sufficient evidence to present the case to the jury under Rule 3:18-1. Even in

view of defendant's testimony to the contrary, that evidence also was sufficient

to convict him of burglary under Rule 3:18-2.

A-5901-17
15
 IV.

Lastly, defendant argues his sentence is excessive. He asserts the judge

erroneously imposed the maximum prison term on each conviction by

improperly finding aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the nature

and circumstances of the offense), and two, N.J.S.A. 2C:44-1(a)(2) (the gravity

and seriousness of harm to the victim). Defendant also contends the Yarbough4

factors do not support the imposition of consecutive sentences. For the reasons

that follow, we remand for resentencing.

Our analysis of these arguments is framed by well-settled principles.

Ordinarily, we defer to the sentencing court's determination, State v. Fuentes,

217 N.J. 57, 70 (2014), and do not substitute our assessment of the aggravating

and mitigating factors for that of the trial judge, State v. Miller, 205 N.J. 109,

127 (2011); see also State v. Case, 220 N.J. 49, 65 (2014). We will not disturb

a sentence that is not manifestly excessive or unduly punitive, does not

constitute an abuse of discretion, and does not shock the judicial conscience.

See State v. O'Donnell, 117 N.J. 210, 215-16 (1989). However, our deference

"applies only if the trial judge follows the Code and the basic precepts that

channel sentencing discretion." Case, 220 N.J. at 65.

4
State v. Yarbough, 100 N.J. 627 (1985).
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 A. Aggravating Factors One and Two

At sentencing, the trial judge found aggravating factors one, two, three,

and nine. See N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the

offense); (a)(2) (the gravity and seriousness of harm to the victim); (a)(3) (the

risk of re-offense); (a)(9) (the need to deter defendant and others). The judge

contemplated mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (the absence of a

prior criminal record), but did not find that factor because defendant had a prior

domestic violence offense. The judge concluded the aggravating factors

substantially outweighed the non-existing mitigating factors.5

We review a trial judge's findings as to aggravating and mitigating factors

to determine whether the factors are based on "competent, credible evidence in

the record." O'Donnell, 117 N.J. at 215. "To facilitate meaningful appellate

review, trial judges must explain how they arrived at a particular sentence."

Case, 220 N.J. at 65. "Elements of a crime, including those that establish its

grade, may not be used as aggravating factors for sentencing of that particular

crime," State v. Lawless, 214 N.J. 594, 608 (2013), which "would result in

impermissible double-counting," State v. A.T.C., 454 N.J. Super. 235, 254 (App.

5
Defendant does not challenge the imposition of aggravating factors three and
nine, or the absence of mitigating factors.
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17
Div. 2018); see also Yarbough, 100 N.J. at 633. We will remand for

resentencing if the sentencing court considers an inappropriate aggravating

factor. Lawless, 214 N.J. at 604-05.

While "sentencing courts frequently apply both aggravating factors one

and two, each requires a distinct analysis of the offense for which the court

sentences the defendant." A.T.C., 454 N.J. Super. at 255 (quoting Lawless, 214

N.J. at 600). When evaluating aggravating factor one, "[a] sentencing court may

consider 'aggravating facts showing that [a] defendant's behavior extended to

the extreme reaches of the prohibited behavior.'" State v. Miller, 237 N.J. 15,

29 (2019) (alterations in original) (quoting Fuentes, 217 N.J. at 75).

Aggravating factor two "focuses on the setting of the offense itself with

particular attention to any factors that rendered the victim vulnerable or

incapable of resistance at the time of the crime." Lawless, 214 N.J. at 611. As

the Court has noted, "psychological harm . . . has been considered relevant under

this aggravating factor." State v. Kromphold, 162 N.J. 345, 357 (2000); see also

State v. Logan, 262 N.J. Super. 128, 132 (App. Div. 1993) (finding aggravating

factor two applied where the defendant caused psychological harm to a sexual

assault victim).

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 Here, the judge assigned "some weight" to aggravating factor one, finding

defendant "came up from behind [Katrina] and ambushed her." According to

the judge: "That alone is aggravating factor number one, the nature of the

offense. [Defendant] absolutely surprised her and [he] stalked her."

While the surveillance video depicts defendant's minivan driving

alongside Katrina as she was walking, then rushing into her apartment building

after she entered, Katrina was unaware that defendant was "stalking" her.

However, because we agree that defendant ambushed Katrina in the sanctity of

her home – and because the judge assigned minor weight to aggravating factor

one – we discern no reason to disturb the judge's finding.

Turning to aggravating factor two, the judge found defendant caused

"tremendous harm" to Katrina, thereby assigning this factor "tremendous

weight." To place the judge's findings in context, we note – similar to

defendant's trial – the sentencing hearing was marked by two vastly different

arguments.

Against the advice of counsel, defendant made a lengthy statement on his

own behalf. He claimed he forgave Katrina "for all the evil [she did to him]; for

lying; destroying [his] life; and destroying [his] family's life." Defendant

accused Katrina's friends of manipulating her to file false charges against him.

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 Conversely, Katrina's loved ones spoke of a young woman who was

shattered emotionally after the incident: A "young, vibrant woman," whose "life

has forever been changed." According to her aunt, Katrina "thought[] of ending

her own beautiful life." Katrina's mother told the judge Katrina cried

"hysterical[ly]" when drafting her victim-impact statement.

In finding aggravating factor two, the judge elaborated:

I've heard today about K[atrina] sobbing to her
family and friends, the letters and what I hear today, of
thoughts of suicide, that's today.

The day of the incident, afterwards her family
and friends found her curled up in her bed in the fetal
position, near lifeless.

She felt so unsafe in her room, that at times she
slept with her roommate [be]cause she didn't even want
to be alone in her own bed.

But that got worse. She couldn't even bear that.
So, she moved out of Hoboken but continued to work
in New York, but endured having to commute a . . .
much longer commute and not be[ing] with her friends
just because she feared being alone. She didn't fear that
before April 23, 2017.

....

[]I remember K[atrina] testifying and even
though she's not here today, I incorporate that into my
finding of aggravating factor number two. She was
crying. She was ashamed. She had a very low voice.
She was hurt. Those are all certainly harms.

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 The judge's detailed findings dispel defendant's contentions that "the court

did not put forth its reasoning for finding this factor or why it was putting

tremendous weight on it." The psychological harm to Katrina recounted by the

judge, see Kromphold, 162 N.J. at 357; Logan, 262 N.J. Super. at 132, finds

support in the record, see O'Donnell, 117 N.J. at 215. Moreover, because

Katrina was taken off guard as she entered her home, and overpowered by

defendant thereafter, the record further demonstrates she was "incapable of

resistance at the time of the crime." Lawless, 214 N.J. at 608.

B. Consecutive Sentences

In imposing consecutive sentences, the trial judge recognized Yarbough

as controlling precedent. In Yarbough, our Supreme Court set forth the

following "criteria as general sentencing guidelines for concurrent or

consecutive sentencing decisions":

(1) there can be no free crimes in a system for
which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive
or concurrent sentence should be separately stated in
the sentencing decision;

(3) some reasons to be considered by the
sentencing court should include facts relating to the
crimes, including whether or not:

A-5901-17
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 (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;

(4) there should be no double counting of
aggravating factors; [and]

(5) successive terms for the same offense should
not ordinarily be equal to the punishment for the first
offense[.]

[100 N.J. at 643-44.]

A sixth factor, imposing an overall outer limit on consecutive sentences, was

superseded by statute. See State v. Eisenman, 153 N.J. 462, 478 (1998) (citing

N.J.S.A. 2C:44-5(a)).

Like the statutory aggravating and mitigating factors, "[t]he Yarbough

factors are qualitative, not quantitative," and "applying them involves more than

merely counting the factors favoring each alternative outcome." State v. Cuff,

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239 N.J. 321, 348 (2019). Instead, the sentencing court must consider all the

Yarbough guidelines, with emphasis on the five subparts of the third guideline.

State v. Rogers, 124 N.J. 113, 121 (1991). Concurrent or consecutive sentences

are at the discretion of the sentencing judge. See State v. Carey, 168 N.J. 413,

422 (2001) (citing N.J.S.A. 2C:44-5(a)). In applying the factors, "[t]he focus

should be on the fairness of the overall sentence, and the sentencing court should

set forth in detail its reasons for concluding that a particular sentence is

warranted." State v. Miller, 108 N.J. 112, 122 (1987).

In his assessment of the Yarbough factors that supported consecutive

sentences, the trial judge placed "the most weight on the first factor: There can

be no free crimes." The judge also found defendant committed "three

independent acts of violence," resulting in three separate convictions, and there

was no double counting of the aggravating factors. Unsure whether defendant's

objectives were predominantly independent of one another, the judge recognized

the crimes were committed "very close in time," and involved a single victim.

Although these crimes could be viewed as part of a continuous episode of

aberrant conduct, there is no question they represented separate violations of the

victim. Defendant's pushing his way into Katrina's home and knocking her to

the floor was different from his pinning her down and touching her vagina with

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his finger and penis. As we recognized more than three decades ago in a similar

case: "Clearly, the burglary offense is distinct and dissimilar [from] the sexual

offense." State v. Mosch, 214 N.J. Super. 457, 462-63 (App. Div. 1986). Stated

another way, defendant could have been charged and convicted of second-

degree burglary without committing sexual offenses – and vice-versa. See id.

at 463. Accordingly, we find no abuse of discretion in the court's imposition of

consecutive sentences consistent with the Yarbough guidelines.

While this appeal was pending, however, our Supreme Court issued its

opinion in State v. Torres, 246 N.J. 246 (2021). In that case, the Court

exhaustively reviewed the Yarbough factors, while reaffirming the discretionary

authority of trial courts to impose consecutive sentences by using those

guidelines. Id. at 264-66. The Court reiterated that Yarbough requires the trial

court to place on the record a statement of reasons for imposing consecutive

sentences, which should address the overall fairness of the sentence. Id. at 267-

68 (citing Miller, 108 N.J. at 122).

The Court further recognized that sentencing judges "often seized upon"

the "no free crimes" factor identified in Yarbough. Id. at 269. However, after

Yarbough was decided, the Legislature eliminated the sixth factor, which limited

the overall length of consecutive sentences. Ibid. The Court explained that the

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Yarbough "no free crimes" factor was part of "a set of considerations that

originally included an outer limit." Ibid.

As a result, the Court held:

An explicit statement, explaining the overall
fairness of a sentence imposed on a defendant for
multiple offenses in a single proceeding or in multiple
sentencing proceedings, is essential to a proper
Yarbough sentencing assessment. . . . Acknowledging
and explaining the fairness of the overall sentence
imposed on the defendant advances critical sentencing
policies of the Code, as amplified by Yarbough. It
remains, in fact, the critical remnant of accountability
imposed by Yarbough, since the legislative elimination
of the outer limit imposed by factor six.

[Id. at 268.]

In the present matter, the trial judge assessed the applicable Yarbough

factors, relying heavily on the "no free crimes" factor. He did not address

explicitly or implicitly, the overall fairness of the maximum, consecutive

sentences imposed on defendant, who had no prior indictable convictions.

Consistent with the Court's advisement in Torres, we therefore remand for the

trial judge to provide "[a]n explicit statement, explaining the overall fairness"

of the sentences imposed.

Consequently, we vacate the sentence imposed and remand the matter for

resentencing in light of the Court's admonition in Torres. We express no

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position on the appropriate aggregate sentence. In all other respects, we affirm

defendant's convictions.

Affirmed, and remanded for resentencing. We do not retain jurisdiction.

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