STATE OF NEW JERSEY v. RAMI A. AMER (18-06-0460, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3047-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAMI A. AMER,

Defendant-Appellant.
_______________________

Argued January 18, 2022 – Decided March 31, 2022

Before Judges Messano, Rose and Enright.

On appeal from the Superior Court of New Jersey,
Law Division, Gloucester County, Indictment No. 18-
06-0460.

Shane D. Avidan, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Alison Perrone, Assistant Deputy
Public Defender, of counsel; Shane D. Avidan and
Harris Fischman, Designated Counsel, admitted
pursuant to Rule 1:21-3(c), on the briefs).

Dana R. Anton, Special Deputy Attorney
General/Acting Sr. Assistant Prosecutor, argued the
cause for respondent (Christine A. Hoffman, Acting
Gloucester County Prosecutor, attorney; Dana R.
Anton, on the brief).

The opinion of the court was delivered by
ENRIGHT, J.A.D.

Defendant Rami A. Amer appeals from his February 11, 2019

convictions stemming from a series of "smash and grab" burglaries. We affirm

defendant's convictions and remand for resentencing pursuant to State v.

Torres, 246 N.J. 246 (2021).

I.

Background

During the period between November 12, and November 21, 2016,

multiple burglaries occurred in municipalities throughout Gloucester County.

The modus operandi was essentially the same. The suspect smashed the glass

of a storefront, entered the business, and removed cash found on the pre mises.

Some of the burglaries were captured on surveillance footage while in

progress. Although the quality of the footage neither permitted identification

of the suspect nor definitive identification of the light blue minivan the suspect

used when committing the offenses, some footage captured images of the

hooded, masked suspect wearing gloves and using a hammer to smash the

glass, and displayed a damaged hubcap on the suspect's vehicle.

On November 19 at approximately 2:30 a.m., defendant was stopped by

an officer from the Harrison Township Police Department. Prior to the stop,

the officer saw one of the vehicle's headlights was out, observed defendant

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driving partially over the white line, and wanted to "double check[] on why

[defendant] was in the area" that late at night. Defendant was driving a light

blue Chrysler Town and Country minivan with Pennsylvania plates and had

turned into a local shopping center. He received a ticket for the broken

headlight and was permitted to leave without further incident.

The next day, officers from the same police department were asked to

investigate burglaries committed at a local pet supply store and a spa. The

businesses were situated in the same plaza where defendant was pulled over

for the motor vehicle stop. Color surveillance footage from the pet supply

store showed a light blue minivan with a broken hubcap drive past the store at

around 7:10 a.m., and a masked and hooded suspect wearing gloves shatter the

storefront entrance with a hammer.

The police investigated whether there were any light blue minivans in

their system that matched the one used during the burglaries. Their search

revealed defendant's motor vehicle stop from November 19 and that his

minivan was registered to Laila Amer, defendant's wife. Accordingly, the

police drove past defendant's nearby residence, and found a light blue minivan

parked in his driveway. The minivan was missing part of a hubcap.

On November 21, 2016, officers in Harrison Township responded to a

complaint of another burglary, this time at a local bagel shop. The owner of

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the shop reported he received an alert shortly after 3:00 a.m. and when he went

to the scene, he saw the glass front door was smashed. Surveillance footage

obtained from a nearby bank captured the image of a light blue Chrysler

minivan at the scene as the burglary was in progress.

That same morning, officers from the Mantua Township Police

Department received a report of an erratic driver on Bridgeton Pike, the same

thoroughfare where many of the burglaries had occurred. The description of

the erratic driver's car purportedly matched the description of the minivan seen

on surveillance video from recent burglaries. The police found the driver, later

identified as defendant, in a parking lot on Bridgeton Pike. He was alone and

sitting in the driver's seat; the rear passenger side hubcap on his car was

broken. Defendant was removed from the vehicle and placed in a police car.

Although officers from Mantua Township stopped defendant, Detective

Adam McEvoy, from the Harrison Township Police Department, joined them

at the scene after learning the suspect's car might match the description of the

minivan associated with burglaries in the area. Detective McEvoy spoke to

defendant while defendant was seated in the police car and given his Miranda1

rights. The detective testified at trial that defendant asked him to retrieve his

wallet and phone from inside his car, and Detective McEvoy complied with the

1
Miranda v. Arizona, 384 U.S. 436 (1966).
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request. When he went to pick up defendant's items, the detective saw a red

hammer inside the minivan, purportedly matching the description of the

hammer used by the suspected burglar as seen on surveillance footage. He

also saw a large number of loose coins inside the minivan. The detective

secured the hammer and loose change. Once defendant was removed from the

minivan, the police also discovered shards of glass on the soles of defendant's

work boots.

Defendant was transported to the Harrison Township Police Department

for a custodial interview and when he arrived, officers observed a cut on his

right arm. Defendant agreed to waive his Miranda rights and speak to

members of various police departments who inquired about burglaries

committed in their municipalities. The interview lasted several hours, during

which defendant was afforded a break. He did not confess to any of the

burglaries and finally advised he was unwilling to answer more questions.

While in custody, defendant executed a consent to search form for the

minivan. Additionally, his wife signed another form authorizing the search

and was present for the search. During the search, the police found black

gloves matching those seen on surveillance video of some of the burglaries, as

well as black clothing, a flashlight, and shards of glass.

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 Several months later, separate indictments were issued against defendant

for his alleged role in the "smash and grab" burglaries, as well as related

offenses; in June 2018, he was charged under a superseding indictment with

seventeen counts of third-degree burglary, N.J.S.A. 2C:18-2(a)(1), five counts

of third-degree theft, N.J.S.A. 2C:20-3(a), two counts of fourth-degree theft,

N.J.S.A. 2C:20-3(a), two counts of fourth-degree attempted theft, N.J.S.A.

2C:5-1(a)(1), and 2C:20-3(a), and eleven counts of fourth-degree criminal

mischief, N.J.S.A. 2C:17-3(a)(1), for a total of thirty-seven counts.

II.

Pretrial Motions and the Commencement of Trial

While defendant's case in New Jersey was pending, he began serving a

state prison sentence in Pennsylvania for similar offenses. He requested

disposition of his charges in New Jersey under the Interstate Agreement on

Detainers (IAD), N.J.S.A. 2A:159A-1 to -15; the State of New Jersey received

his request by February 23, 2018.

In May 2018, the trial judge in the present matter issued a scheduling

order, directing any suppression motions related to the November 2016

warrantless search be filed within two days. The judge further ordered any

other motions and supporting briefs be filed no later than June 1. The defense

filed two suppression motions on May 21, but its corresponding letter briefs

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were submitted after the deadline fixed by the court. One such brief was filed

electronically on the day of the suppression hearing and referenced a search

warrant and a canine sniff, neither of which were implicated in this matter. In

any event, defendant's filings confirmed he sought suppression of the items

seized from his person and his minivan, as well as statements made during his

custodial interview.

On June 29, 2018, the judge proceeded with the suppression hearing.

The State called one witness — the Woolwich Township police officer who

conducted the search of defendant's minivan in the presence of defendant's

wife and was present for a portion of defendant's custodial interview. The

officer confirmed that after defendant's arrest, he was given his Miranda rights,

was "very cooperative," and agreed to the search of the minivan. The office r

also stated defendant's wife consented to the search.

In his closing argument, defense counsel noted that he presented the

court with "twin motions of . . . Miranda and consent to search. And . . .

they're intertwined[.]" Defendant's attorney did not dispute defendant was

Mirandized at the commencement of his custodial interview, but contended

defendant was "tired" during his interview. The judge responded to counsel's

remarks, stating:

This was a motion that you filed to challenge
the search . . . that comes from the consent forms plus
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 [defendant's] Miranda [rights] with regard to the
statement. It's all right there apparently on the video
but no one ever gave it to the [c]ourt. Your argument
is that . . . he is so tired[,] that he is so sleepy, so
groggy, so fatigued that his will is overborne and yet
you don't give me the video to assess that.

Defense counsel continued his argument, stating:

[W]ith regard to the consent to search[,] we . . . have
. . . [defendant] at some point as he's getting more and
more tired and . . . he's signing this consent to search
and he waives his right to be present at execution [of
the search], of course he can withdraw his consent at
any time even though he is not present.

We also have [defendant's wife]. And we hear
. . . she is eager to get her car back . . . and so eager to
get her car back she signs the consent to search and
dutifully waits while they search . . . the vehicle.

....

She doesn't do it knowing the circumstances of
the situation and we don't know whether [defendant's
wife] would have consented to that search . . . if she
had been told something about what her husband was
facing here . . . .

And so, . . . defense also asserts that that
consent to search is invalid and asks that the glove and
all the photographs that were taken including of loose
change and all that . . . be suppressed as well.

At no time during the hearing did defense counsel contest the State's

recitation of facts in its June 1, 2018 brief that Detective McEvoy seized items

in plain view when defendant asked him to retrieve items from the minivan.

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 At the conclusion of the hearing, the judge rendered a decision from the

bench, finding,

with regard to the search[,] there's no question that it
was a valid search. The consent came from both the
defendant as well as the wife. They signed the
consent forms. . . . [T]here's nothing to suggest that
the defendant was . . . in such a condition that he
didn't . . . understand the consent form, that he . . . was
unable to sign the form [because] he was so fatigued
or otherwise. He waived his right to be present.

The wife signed the consent form. She did not
waive her right to be present. She was present during
the search. There's nothing to suggest that the consent
here was invalid in any way. So the search of the van
is valid based upon the consent . . . .

. . . I have nothing before me to suggest that the
defendant's will was overborne in any way with regard
to the statement. The witness testified that the
defendant was very cooperative. He did appear tired,
did appear fatigued, but without the benefit of
reviewing the video to determine . . . whether or not
he is completely incoherent because of fatigue or
otherwise . . . there's nothing present before me to
suggest that the defendant was of such a condition that
he was incapacitated or incapable [in] any way to
make a valid waiver of his rights.

....

So . . . his waiver of his Miranda rights seems to
be knowing and voluntarily made . . . . So . . . the
motion to suppress the statement is denied. The
motion to suppress the search is denied.

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 On July 13, 2018, the judge issued a written decision, supplementing his

reasons for denying the suppression motions. Preliminarily, he commented in

a footnote that "[d]efense counsel filed a notice of motion for both motions to

suppress. However, defense counsel has only submitted a written brief in

support of the motion to suppress [d]efendant's statement to police. The State

has submitted briefs in opposition to both motions." 2

The judge found that when defendant was arrested and removed from his

vehicle, he asked Detective McEvoy to enter the minivan to retrieve

defendant's wallet and cell phone. Further, the judge noted that when the

detective accommodated defendant's request, he inadvertently discovered a red

hammer and large amounts of coins "in plain view inside the vehicle."

Additionally, the judge found Detective McEvoy recognized the red hammer in

defendant's car was similar to the hammer seen on surveillance videos of the

"smash and grab" burglaries recently committed; the detective was aware the

hammer was found in a blue minivan with a rear hubcap missing, just like the

van seen on surveillance footage, and the amount of coins Detective McEvoy

2
The record reflects defense counsel did not alert the judge to the late
electronic filing of his June 29 letter brief, and the judge remained unaware of
this filing until well after he issued his July 13 written opinion. Nonetheless,
following his review of the untimely brief, the judge notified counsel that its
contents did not alter the court's "position that the evidence is not suppressed
and the [suppression] motion's denied."
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spotted was consistent with the money stolen from the cash drawers at the

businesses targeted by the suspect. After highlighting the requirements for a

plain view exception to the warrant requirement, under State v. Mann, 203 N.J.

328, 341 (2010), the judge found the detective properly seized the hammer and

coins under that exception.

Additionally, citing State v. Johnson, 68 N.J. 349, 353-54 (1975), the

judge confirmed the search of defendant's vehicle was valid under the

"recognized exception to the warrant requirement" of consent. The judge

found because "[d]efendant and his wife completed consent to search forms

prior to the search of the vehicle[,]" defendant's wife "was present for the

entire search[,]" and "consent was voluntarily given[,]" the search was lawful.

Further, the judge found "the State proved beyond a reasonable doubt

that [d]efendant's decision to waive his Miranda rights was knowing and

intelligent." The judge specifically rejected defendant's argument that his

waiver was "not knowing and intelligent because [defendant] was sleep

deprived at the time he waived his rights." Instead, the judge found

"[d]efendant's conduct during the interview demonstrated . . . the alleged lack

of sleep did not affect his understanding of his Miranda rights," because he

was "coherent during the course of the interview and able to make informed,

deliberate decisions," including the decision to "assert[] his right to terminate

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the interrogation, which was honored." Citing State v. Nyhammer, 197 N.J.

383, 401 (2009), the judge concluded under the "totality of the

circumstances[,]" including defendant's age and prior involvement with law

enforcement, as well as the fact defendant "never confessed to any of the

alleged crimes[,]" defendant's will was not "overborne."

Four days after he issued his supplemental suppression opinion, the

judge executed a Trial Management Order, directing the parties to appear for a

pretrial conference on July 23 and notifying counsel he "anticipate[d] selecting

a jury" that morning "and opening thereafter." The order also stated "[c]ounsel

must have witnesses available so as to utilize the entire trial day."

On July 23, the judge conferenced the matter with counsel, and jury

selection was rescheduled to the next day. The judge noted jury selection

would continue the following week, but the court would need to "take a break

and then pick back up in September." Neither defense counsel nor the State

objected to the timeframes outlined by the court. Also on July 23, defendant

filed a motion in limine, asking the judge to bar the State from eliciting certain

testimony during the trial.

Jury selection began on July 24, 2018. Later that day, the judge

informed counsel that jury selection would continue the next day and the

parties would return to court again on July 31. Because he anticipated a break

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in the proceedings in August, due to his calendar obligations and vacation

schedule, and defense counsel's vacation plans in early September, the judge

also advised counsel they should expect to resume the case on September 13.

Again, neither the State nor defense counsel objected to the dates provide d by

the court.

But on July 25, as jury selection continued, defense counsel informed

the court that he and defendant discussed "the IAD" and defendant had

expressed concern that "in August, we don't have trial." Counsel added:

And I did go over it, you know, I understand [a]
jury trial must commence within 180 days of the
defendant's demand.

....

. . . I just wanted to make a record. . . . I just
note that I have availability for the month of August
. . . . I have the days where this could be, I submit,
accomplished in time.

. . . And so, we're talking about delay – I looked
at it this way, Your Honor is commencing this within
180 days, and so, that part is met. And then I thought
. . . well what if a [c]ourt commenced the trial and
then put it off, like six months and then didn't
continue the trial . . . that would be violative and
undue delay, unnecessary delay.
[(Emphasis added).]

The assistant prosecutor countered:

I think the IAD is very clear that trial must commence
before the IAD date. We are commencing the trial,
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 we're picking a jury as we're currently sitting. We still
have another day in this month to continue . . . . The
defense filed two motions, the dates between that
motion being heard and the previous hearing, those
should be excluded from the 180 days, which would
put us well into September.

Therefore, even if we didn't . . . commence until
September, we would be commencing at the proper
time.

The judge responded:

[W]e commence[d] trial within 180 days and this is
not the situation that . . . the defense . . . suggested . . .
as a possibility for a six-month delay. The [c]ourt is
commencing, getting it started. It is unavailable in
August. It has a specific assignment in August that
has to be achieved. The assignment is criminal justice
reform where it does not permit trial days within that
month.

I do have vacation in that month. We realized
yesterday that the defense has a vacation in early
September. . . . The case cannot be tried when there's
a dispositive motion that's pending. It has to be
resolved. I think we did resolve it as expeditiously as
we could, so I will look at that.

But in any event, we commenced the trial within
the statutory framework of the IAD . . . .

So, we have begun the trial. There is going to
be a disruption. I'll look into the question of tolling
and that may provide the dates in question.

....

Certain motions may call upon . . . that [IAD]
clock to be tolled, . . . because if they're dispositive
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 motions, the case can't be tried until they're briefed
and heard. And I think both counsel have a right to be
thorough in their review of the issue and brief it so the
[c]ourt is well-informed in the argument . . . [a]nd we,
in fact, did that.

So, I'll consider, I'll look at the issue of
exclusion, but within the confines of the IAD, we've
started the case, we commenced it with 180 days, and
I don't see that there's an IAD violation.

Later that day, the judge asked if either attorney had any issues that

needed to be addressed. The assistant prosecutor asked, "should the State be

ready to open, and more importantly, have witnesses for next Tuesday [Jul y

31], or are we just going to finish jury selection?" The judge stated:

If it were me trying the case, I would say let's
get the jury picked and then we'll start openings when
we return. You'll have a witness and a half, two
witnesses, . . . and you'll be asking the jury to
remember what they said . . . over . . . a month or so,
so that would be what I'd be asking. But what do you
think?

The following exchange then occurred between defense counsel, the

judge, and the assistant prosecutor:

DEFENSE COUNSEL: I'm concerned about time, but
what happens is there's no way that the trial finishes
on Tuesday –

JUDGE: No.

DEFENSE COUNSEL: − at this point, I do concede.
[D]o that. I just think – I think what that will also

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 help is prevent, hopefully, a lot of questions about the
testimony that came in . . . on Tuesday, you know?

ASSISTANT PROSECUTOR: And then –

DEFENSE COUNSEL: And that would extend proceedings.

JUDGE: Read backs and all that kind of stuff.

[(Emphasis added).]

In response to a follow-up question by the assistant prosecutor, the judge

stated it was not his intention to swear in the jury once the selection process

concluded because jurors could be lost over the upcoming break. In fact, he

stated, "in that time period, who knows? We could have a problem with one or

more [jurors]."

The following day, the judge issued a six-page opinion, confirming he

understood a "prisoner must 'be brought to trial within 180 days'" of the State

receiving a prisoner's request for disposition under the IAD. The judge

determined "New Jersey authorities received [d]efendant's request to address

his untried matter(s) in New Jersey" on February 23, 2018 and the "[t]rial

commenced on July 24, 2018 with jury selection," well within the 180-day

timeframe under the IAD.

Noting defendant was transported to New Jersey in March 2018 and

indicted by way of a superseding indictment in June 2018, the judge also found

that at one point, defendant was "unable to stand trial due to the filing and
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pendency of [his] pretrial motions," thereby tolling the 180-day time period for

disposition of his case. Further, the judge stated that a "delay attributable to

disposition of motions filed by . . . defendant" constituted "good cause" for

tolling under the IAD. He calculated that the 180-day period within which

defendant was to be tried was tolled from May 21, when defendant's

suppression motions were filed, to July 13, 2018, when they were resolved.

The parties returned to court on July 31, at which time the judge

addressed defendant's pending in limine motion. The judge granted the

motion, in part, and barred the State from eliciting testimony from police

officers that the hammer, clothing, and boots recovered during defendant's

arrest were the same items seen in surveillance footage from the burglaries.

Further, the judge granted defendant's request to prohibit officers from

testifying about drugs and paraphernalia found in the minivan, as well as

defendant's suspected drug use.

The judge also barred officers from testifying about how defendant may

have received a cut on his arm before he was arrested, and, "[a]bsent expert

testimony," the State's witnesses were not permitted to testify that shards of

glass found in the minivan or on defendant's boot matched the broken glass

found at the businesses burglarized. Still, the judge did not preclude the State

from arguing at closing that the jury could draw an inference that the hammer,

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coins, and glass shards found in the minivan, along with the cut on defendant's

arm and glass shards found in his boot, were tied to the burglaries. Moreover,

the judge saw no reason to prohibit officers from testifying why, "based upon

the commonality of things in different burglaries, [they] were focusing on

finding a minivan, finding a hammer, [and] finding a person of [a certain]

stature."

In a pro se letter to the judge dated August 28, defendant stated he was

"filing a motion to dismiss all charges being held against him . . . due to a

violation of his rights in regards of the [IAD]." He claimed the 180-day time

limit expired "as of August 22, 2018." Nine days later, the judge entered an

order, accompanied by a thirteen-page decision, denying defendant's

application, noting defendant's "very issue was raised by defense counsel on

July 24[] orally at the start of jury selection." 3 The judge reiterated many of

the findings set forth in his July 26 opinion, and specified that the "180 -day

clock" was tolled for fifty-four days to account for the filing and resolution of

defendant's suppression motions. By the judge's calculations, the "[t]olling of

3
The September 6, 2018 order was amended to correct the date of the decision
and refiled on September 17.

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[fifty-four] days . . . move[d] the maximum date of August 22nd [to start the

trial] to October 14th." 4

Additionally, the judge expressed that after jury selection started on July

24, "[t]he court was unavailable to try any case in August due to its assigned

duties . . . and a scheduled vacation." Further, he stated defendant's attorney

"was unavailable to try the case until September 13, 2018, due to a scheduled

vacation." Given "[o]pening statements [were] scheduled to commence on

September 13th[,]" the judge reasoned, "[i]f you consider either July 24th or

September 13th as the commencing date of trial, either is within the tolled 180 -

[d]ay statutory period." Therefore, the judge again found there was "no

violation of the [IAD]."

On September 13, prior to opening statements, the judge informed

counsel he saw no need for further argument regarding the IAD because no

new issues were raised in defendant's pro se letter that had not been previously

addressed. Later that day, the judge also declined to revisit his decision on the

suppression motions.

After calling its first witness on September 13, the State introduced over

one hundred exhibits, including surveillance footage and items seized from

4
Although the time period between these two dates actually equals fifty-three
days, that fact does not affect our decision.
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defendant's minivan. Also, the State provided photos of the cut found on

defendant's right forearm when he was arrested. Further, it produced over one

dozen witnesses, including victims of the burglaries, as well as Detective

McEvoy, and Harrison Township Police Officer Kevin McGowan. Both

members of law enforcement testified about their respective investigations, the

surveillance footage they viewed, and the damaged hubcap they found on

defendant's vehicle, which was similar to that seen in the footage.

At the close of the State's case, defendant moved for a judgment of

acquittal, pursuant to Rule 3:18-1. The motion was denied. Defendant elected

not to testify or call any witnesses.

On October 4, 2018, the jury returned its verdict, convicting defendant

of: thirteen counts of third-degree burglary; one count of third-degree theft by

unlawful taking; five counts of fourth-degree theft by unlawful taking; eight

counts of fourth-degree criminal mischief; and one count of fourth-degree

attempted theft by unlawful taking. It acquitted defendant of four counts of

burglary.5 Subsequently, defendant was sentenced to four consecutive terms of

5
The following counts were dismissed before the jury deliberated: counts two
and three (involving a November 20, 2016 burglary); counts five and thirty-
seven (involving burglaries on November 21, 2016); and count thirty -two
(involving a November 15, 2016 burglary).

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imprisonment of four years each, i.e., one four-year term for each day he

committed burglaries in November 2016. The judge ordered defendant's

sixteen-year aggregate sentence to run consecutively to the sentence defendant

was serving in Pennsylvania.

III.

Defendant raises the following contentions for our consideration:

I. The Indictment Should Be Dismissed With
Prejudice Because [Defendant] Was Not "Brought
to Trial" Within 180 Days, as Required by the
Interstate Agreement on Detainers.

A. [Defendant] Was Not "Unable to Stand Trial"
While His Pretrial Motions Were Pending.

B. [Defendant] Was Not "Brought to Trial"
When Voir Dire Began.

II. The Prosecution Failed to Prove Beyond a
Reasonable Doubt that [Defendant] Committed the
Burglaries.

A. The Hammer Does Not Link [Defendant] to
the Crimes.

B. The Minivan Does Not Link [Defendant] to
the Crimes.

C. The Other Evidence Does Not Link
[Defendant] to the Crimes.

III. [Defendant] Was Deprived of a Fair Trial by Police
Officers' Lay Opinion Testimony Purporting to
Identify the Hammer and Minivan in the

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 Surveillance Videos as [Defendant's] Hammer and
Minivan.

IV. The Hammer and Coins Should Have Been
Suppressed.

V. The Trial Was So Infected With Error That Even If
Each Individual Error Does Not Require Reversal,
The Aggregate Of The Errors Denied [Defendant]
A Fair Trial.

VI. At a Minimum, [Defendant] Should be
Resentenced.

A. The Sentencing Court Failed to Consider
Special Probation on the Erroneous Ground
that [Defendant] Was Not Eligible.

B. The Sentencing Court Failed to Explain Why
the Four Consecutive Sentences Should Be of
Equal Length, Which Resulted in an
Excessive Sentence.

We are persuaded defendant's argument under Point II lacks sufficient

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

As to Point IV, we affirm the denial of defendant's suppression motions

for the reasons expressed by the trial judge in his oral and written opinions.

To the extent defendant quarrels with the judge's determination that certain

items were found by Detective McEvoy in plain view, the record reflects

defendant failed to timely raise this argument before or during the sup pression

hearing. Further, even in his untimely June 29 brief, defendant simply asserted

"[t]he items [recovered by law enforcement] were not in plain view until police
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22
had made [d]efendant exit the vehicle. He should have been allowed to go on

his way."

"The mere allegation of a warrantless search . . . does not place material

issues in dispute . . . ." State v. Green, 346 N.J. Super. 87, 91 (App. Div.

2001). Rule 3:5-7(b) provides that when a defendant files notice that he or she

will seek to suppress evidence seized without a warrant, the State must file a

motion, together with a brief and a statement of facts. The defendant then is

required to file a brief and counterstatement of facts. R. 3:5-7(b). "It is only

when the defendant's counter[-]statement places material facts in dispute that

an evidentiary hearing is required." Green, 346 N.J. Super. at 90 (citing State

v. Hewins, 166 N.J. Super. 210, 213-15 (Law. Div. 1979), aff'd, 178 N.J.

Super. 360 (App. Div. 1981)). Under these circumstances, where defendant

submitted no facts contrary to those presented by the State regarding Detective

McEvoy's recovery of items in plain view, we decline to conclude it was error

for the judge to rule on the suppression motions and make his findings without

requiring testimony from Detective McEvoy.

Additionally, because we reject defendant's individual claims of error

relative to the judge's handling of the trial, we decline to reverse defendant's

convictions under the cumulative error doctrine, as argued in Point V. See

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State v. Terrell, 452 N.J. Super. 226, 308 (App. Div. 2016). We address

defendant's remaining contentions more fully.

A. The IAD

Regarding Point I, defendant renews his argument that he was not

brought to trial within the requisite 180-day period under the IAD and

therefore, his charges should have been dismissed. We are not convinced.

"As a 'congressionally sanctioned interstate compact,' the interpretation

of the IAD 'presents a question of federal law.'" State v. Pero, 370 N.J. Super.

203, 214 (App. Div. 2004) (quoting Cuyler v. Adams, 449 U.S. 433, 442

(1981)). "Questions related to statutory interpretation are legal ones" and

therefore, we review those conclusions de novo. State v. S.B., 230 N.J. 62, 67

(2017).

The purpose of the IAD "is 'to encourage the expeditious and orderly

disposition of such [outstanding] charges and determinations of the proper

status of any and all detainers based on untried indictments, informations or

complaints' and to provide 'cooperative procedures' for making such

determinations." State v. Perry, 430 N.J. Super. 419, 424-25 (App. Div.

2013) (alteration in original) (quoting 18 U.S.C. app. 2, § 2, art. I; N.J.S.A.

2A:159A-1). The IAD "shall be liberally construed so as to effectuate its

purposes." N.J.S.A. 2A:159A-9. Also, "whenever possible, the interpretation

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24
of the [IAD] and the [Speedy Trial Act (STA)], 18 U.S.C.S. §§ 3161-74 should

not be discordant." United States v. Peterson, 945 F.3d 144, 151 (4th Cir.

2019) cert. denied, 141 U.S. 132 (2020) (quoting United States v. Odom, 674

F.2d 228, 231-32 (4th Cir. 1982)).

Under Article III of the IAD, the prosecutor is required to proceed to

trial within 180 days of written notice of the defendant's current place of

imprisonment and his or her request for a final disposition. N.J.S.A. 2A:159A-

3(a). The 180-day period to bring the prisoner to trial runs from the date the

appropriate written notice is actually delivered to the prosecutor. Fex v.

Michigan, 507 U.S. 43, 52 (1993); Pero, 370 N.J. Super. at 215. If the

defendant is not brought to trial within the applicable period, the indictment is

subject to dismissal with prejudice. N.J.S.A. 2A:159A-5(c).

However, the 180-day period is "not absolute." State v. Binn, 196 N.J.

Super. 102, 108 (Law Div. 1984), aff'd as modified, 208 N.J. Super. 443, 450

(App. Div. 1986). Under Article III(a) of the IAD, "the court having

jurisdiction of the matter may grant any necessary or reasonable continuance"

"for good cause shown in open court, [and] the prisoner or his [or her] counsel

being present[.]" N.J.S.A. 2A:159A-3(a). The grant of a continuance, on

good cause shown, may be made "at any time prior to an actual entry of an

order dismissing the indictment pursuant to Article V[.]" State v. Lippolis,

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25
107 N.J. Super. 137, 147 (App. Div. 1969) (Kolovsky, J.A.D.,

dissenting), rev'd on dissent, 55 N.J. 354 (1970).

Good cause for a continuance under the IAD is analyzed for an abuse of

discretion. See State v. Buhl, 269 N.J. Super. 344, 356 (App. Div. 1994). But

the IAD does not define the term "good cause." See Ghandi v. Cespedes, 390

N.J. Super. 193, 196 (App. Div. 2007) (explaining "'[g]ood cause' is an

amorphous term . . . difficult of precise delineation"). Thus, "the question of

whether good cause exists for a continuance must be resolved from a

consideration of the totality of circumstances in the particular case, on the

background of the considerations which motivated the interstate agreement, as

expressed in N.J.S.[A.] 2A:159A-1." State v. Johnson, 188 N.J. Super. 416,

421 (App. Div. 1982) (quoting Lippolis, 107 N.J. Super. at 148-49 (Kolovsky,

J.A.D., dissenting)).

Additionally, under Article VI(a), the 180-day period can be "tolled

whenever and for as long as the prisoner is unable to stand trial, as determined

by the court having jurisdiction of the matter." N.J.S.A. 2A:159A-6(a). "To

bring this provision of the [IAD] into conformity with the STA, the clear

majority of [federal] circuits have read this tolling section 'to include those

periods of delays caused by the defendant's own actions[,]'" Peterson, 945 F.3d

at 154 (quoting United States v. Ellerbe, 372 F.3d 462, 468 (D.C. Cir. 2004)),

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including "periods of delay occasioned by . . . motions filed on behalf of [a]

defendant[,]" id. at 155 (alterations in original) (quoting United States v.

Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988)). 6 See also New York v. Hill,

528 U.S. 110, 112 (2000) (confirming the filing of "several motions" by

defense counsel "tolled the time limits [under the IAD] during their

pendency").

Notably, a defendant also will be deemed to have waived rights under

the IAD if defense counsel requests or agrees to a trial date beyond the

relevant 180-day timeframe. Id. at 114; see also Buhl, 269 N.J. Super. at 357.

Such a waiver will bar the defendant from later seeking a dismissal of the

indictment on those same grounds. As noted by the Hill Court, a defendant is

"deemed bound by the acts of his [or her] lawyer[,]" and "[s]cheduling matters

6
We are cognizant a circuit split exists on whether pretrial defense motions
render a defendant "unable to stand trial." At least six courts of appeal have
found a defendant "unable to stand trial" when he or she has motions pending
before the trial court. See Peterson, 945 F.3d at 154-55 (4th Cir. 2019);
Ellerbe, 372 F.3d at 468-69 (D.C. Cir. 2004); United States v. Cephas, 937
F.2d 816 (2d Cir. 1991); Nesbitt, 852 F.2d at 1512-13 (7th Cir. 1988); United
States v. Johnson, 953 F.2d 1167 (9th Cir. 1992); United States v. Walker, 924
F.2d 1 (1st Cir. 1991). By contrast, the Fifth and Sixth Circuits have found
that "unable to stand trial" "refer[red] to a party's physical or mental ability to
stand trial throughout the fifteen years prior to Congress enacting the [IAD]."
See Birdwell v. Skeen, 983 F.2d 1332, 1340-41 (5th Cir. 1993); Stroble v.
Anderson, 587 F.2d 830, 838 (6th Cir. 1978). The United States Supreme
Court recently denied certiorari to the Fourth Circuit Court of Appeals on this
discrete issue. Sok Bun v. United States, ___ U.S. ___, 141 S. Ct. 132 (2020).
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27
are plainly among those for which agreement by counsel generally controls."

528 U.S. at 115. The Court reasoned that when the trial date is at issue under

the IAD, "only counsel is in a position to assess the benefit or detriment of the

delay to the defendant's case." Ibid.

Governed by these principles, we are convinced the judge properly

denied defendant's motion to dismiss based on an IAD violation. We reach

this result because defendant waived his right to start the trial within 180 days

of February 23, 2018, i.e., August 22, 2018, when his attorney conceded

during jury selection on July 25, 2018 that the State should not be required to

present witnesses to testify on the next scheduled court day of July 31. As

discussed, this waiver evolved from a dialogue between the judge and counsel

about whether it would be prudent to commence testimony on July 31, given

the distinct possibility jurors might not recall such testimony when trial

resumed several weeks later. During the colloquy, although defendant's

attorney stated he was "concerned about time," he also concluded, "there's no

way that the trial finishes on Tuesday [July 31]" so "at this point, I do concede.

[D]o that. I just think – I think what that will also help is prevent, hopefully, a

lot of questions about the testimony that came in . . . on [July 31], you know? "

(Emphasis added). This waiver in open court is fatal to defendant's contention

the judge erred in rejecting his request for dismissal of the indictment.

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 Additionally, we are persuaded the judge correctly found the period

between the filing of defendant's suppression motions and their resolution

several weeks later tolled the time under the IAD for defendant to be brought

to trial. Accordingly, we decline to disturb the judge's calculation that

defendant's initial end date for being brought to trial, August 22, 2018, was

extended by approximately fifty-four days to account for the time it reasonably

took to resolve these motions. In short, because: the original IAD deadline

was properly tolled and reset to October 14, 2018; defendant's trial

commenced and concluded before October 14; the judge opted not to further

toll the original deadline to account for defendant's additional motions; and

there is no suggestion by defendant that the State engaged in dilatory tactics,

we are satisfied the judge correctly concluded the tolling of the IAD deadline

resulted in no IAD violation.

Although we need not address this issue further, for the sake of

completeness, we note the judge also found there was "good cause" to extend

the statutory 180-day period. As discussed, a court may grant a continuance

under the IAD if "necessary or reasonable," "for good cause." Considering the

judge listed, heard, and decided defendant's suppression motions within weeks

of their filing, we decline to conclude the judge abused his discretion in

A-3047-18
29
finding there was "good cause" to extend the 180-day period under the IAD

due to the filing of defendant's suppression motions. 7

B. Lay Testimony

Regarding Point III, defendant argues his convictions should be reversed

because Detective McEvoy and Officer McGowan provided improper lay

testimony "to the effect that they could positively identify [defendant's]

hammer and . . . minivan in the surveillance videos." (Emphasis added).

Because defendant did not object at trial to the portions of lay testimony he

now challenges, we review the admission of this testimony for plain error. R.

2:10-2.

The plain error standard aims "to provide[] a strong incentive for counsel

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

potential error." State v. Bueso, 225 N.J. 193, 203 (2016). Indeed, "[t]he

failure to object suggests that defense counsel did not believe the remarks were

prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999).

The Court has repeatedly emphasized that "rerun[ning] a trial when the error

could easily have been cured on request[] would reward the litigant who

suffers an error for tactical advantage either in the trial or on appeal." State

7
Given defendant's waiver under the IAD, we also need not address his
argument that he was not "brought to trial" as of the date jury selection began.
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30
v. Singh, 245 N.J. 1, 13 (2021) (alterations in original) (quoting State v.

Santamaria, 236 N.J. 390, 404-05 (2019)).

We typically defer to a trial court's evidentiary rulings absent an abuse of

discretion. State v. Garcia, 245 N.J. 412, 430 (2021). Appellate courts review the

trial court's evidentiary ruling "under the abuse of discretion standard because,

from its genesis, the decision to admit or exclude evidence is one firmly entrusted

to the trial court's discretion." State v. Prall, 231 N.J. 567, 580 (2018) (quoting Est.

of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)).

N.J.R.E. 701 governs the admission of lay opinion testimony.8 "The first

prong of . . . N.J.R.E. 701 requires the witness's opinion testimony to be based

on the witness's 'perception,' which rests on the acquisition of knowledge

through use of one's sense of touch, taste, sight, smell or hearing." Singh, 245

N.J. at 14 (quoting State v. McLean, 205 N.J. 438, 457 (2011)). "The second

8
N.J.R.E. 701 provides:

If a witness is not testifying as an expert, the
witness'[s] testimony in the form of opinions or
inferences may be admitted if it:

(a) is rationally based on the witness'[s] perception;
and

(b) will assist in understanding the witness'[s]
testimony or determining a fact in issue.

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31
requirement of N.J.R.E. 701 is that lay-witness opinion testimony be 'limited

to testimony that will assist the trier of fact either by helping to explain the

witness's testimony or by shedding light on the determination of a disputed

factual issue.'" Id. at 15 (quoting McLean, 205 N.J. at 458).

When it comes to testimony by law enforcement, "[f]act testimony has

always consisted of a description of what the officer did and saw," and

"an officer is permitted to set forth what he or she perceived through one or

more of the senses." Ibid. (alteration in original) (quoting McLean, 205 N.J. at

460). Further, a witness is allowed to comment on something seen by the

witness on a surveillance video, as long as the witness uses "neutral, purely

descriptive terminology such as 'the suspect' or 'a person.'" Id. at 18.

Moreover, a jury is free to credit such testimony or reject it entirely. Id. at 20.

Here, we are not persuaded Detective McEvoy or Officer McGowan

violated the tenets of N.J.R.E. 701. Our review of the record reflects neither

witness identified the burglary suspect seen on surveillance video as

defendant; likewise, neither witness testified the minivan seen on such footage

belonged to defendant.

For example, when Detective McEvoy was asked what he observed from

the November 20 video depicting the burglary at a pet supply store, he stated:

As the . . . suspect vehicle approached the front
of the store and drove by slowly, we then learned that
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32
 it was a Chrysler Town and Country minivan, which
was light blue in color. And . . . the rear passenger
side hubcap had a large piece missing out of it.

....

The subject obviously is dressed in all black,
wearing work boots, and had a two-toned hammer,
which was red and black . . . . Another thing that we[]
learned from that video, Patrolman McGowan, who
initially responded to the scene . . . later that day went
back to our station and checked our records
management system and . . . was able . . . to see if any
vehicles matching that description had been stopped.
And . . . he learned that the evening prior to that
burglary at [the pet supply store], a light blue Town
and Country minivan was stopped in that same
complex and issued a summons for a . . . headlight
violation. And at that time of the stop, [defendant]
was driving the vehicle. And at that time, we
identified the vehicle.

Detective McEvoy also stated he saw "the missing piece of hubcap . . . from

the right rear of the vehicle" on surveillance footage.

Thus, instead of identifying defendant as the "the subject . . . dressed in

black" or stating the "suspect vehicle" he saw on the video belonged to

defendant, the detective used neutral language, leaving the jury to decide if

defendant was the burglar at the scene or if the "light blue Town and County

minivan" with the missing piece of hubcap seen on surveillance video

belonged to defendant.

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33
 Additionally, when Detective McEvoy testified about the footage of the

burglary from the bagel store, he confirmed the footage showed "a light blue,

Chrysler minivan," not "defendant's light blue, Chrysler minivan." Further,

when he testified about being at the scene of defendant's arrest on November

21, he stated:

Upon my arrival, I had already been given the
description of the vehicle and the tag and I was alerted
by one of our officers that the same vehicle matched
the description of a previously reported burglary in
Woodbury and possibly Deptford earlier that morning.
So[,] . . . I now observed the vehicle parked in a
marked parking spot and it ha[d] been stopped by [the]
Mantua Township Police Department and they had
removed him from the vehicle at that time.

Immediately upon approaching the vehicle is
when I again observed the rear passenger side hubcap
had a missing portion . . . out of it and then I began
conversing with the officers on scene about what they
observed.

Defendant argues this portion of the detective's testimony should have

been excluded, in part, because the detective referred to "again" observing the

damaged hubcap on the minivan, despite it being the first time he saw

defendant's minivan in person. While we understand defendant's concern in

this regard, we decline to conclude the admission of this statement was plain

error, given the remark was fleeting, and the detective did not state the

minivan defendant drove on the date of his arrest was the same minivan seen

A-3047-18
34
in the footage. Further, a fair reading of the transcript reflects the detective

made clear that on the date of defendant's arrest, a colleague suggested to him

that defendant's stopped vehicle matched the description of a vehicle used in

another reported burglary. Thus, the detective explained that once he arrived

on the scene of defendant's arrest and saw defendant's damaged hubcap, he

"began conversing with the officers on scene about what they observed"; he

did not state he or fellow officers concluded the stopped vehicle was the same

vehicle seen on surveillance video.

The nature of Detective McEvoy's testimony about the hammer found in

defendant's minivan was along the same permissible lines. During the course

of his testimony, Detective McEvoy recalled retrieving the hammer found in

defendant's minivan at the time of his arrest "[b]ecause it was in plain view

and it matched . . . the description of the item used . . . in the burglar

investigations." Again, the detective did not explicitly state the hammer found

in defendant's car was the same hammer used in the burglaries. Further, his

testimony about the hammer was based on his having personally recovered it

from defendant's vehicle, and from viewing surveillance footage containing

images of a similar hammer.

Turning to Officer McGowan's testimony, we note he also addressed

what he saw on surveillance video, without stating he saw defendant or

A-3047-18
35
defendant's minivan on the footage. For example, when describing

surveillance video from the burglary at the pet supply store, the officer stated:

There was one camera . . . pointed towards the
front glass doors that was able to observe a blue
minivan that pulled up in front of the store, stopped
and the suspect got out of the vehicle, entered the
store. When the van's pulling away, you can observe
the entire driver's side of the vehicle and I was able to
notice that the back hubcap of the vehicle was cracked
and broken off.

Asked what he did with the information he gleaned from the footage,

Officer McGowan testified:

We had multiple burglaries that had happened
within the days prior to the [pet supply] store. So
after clearing the scene[,] I went back to our station
and started inputting some data into our record
management system. I was looking for blue minivans
similar to the type that I saw on the surveillance
footage and I came across a blue minivan that was
stopped by [a sergeant] the night before. It had a
Pennsylvania registration on it but the driver of the
vehicle that he had documented on his motor vehicle
stop had actually a New Jersey driver's license that
was registered just up the street from [the pet supply
store].

When the officer was asked whose name was on the registration of the stopped

vehicle, he gave the name of defendant's wife.

In describing what the officer did after he secured this information, he

stated:

A-3047-18
36
 Because it was just outside of my jurisdiction[,]
I was able to drive past the residence that it was
registered to. I drove past the residence and the van
was in the driveway and I observed the same missing
piece of hubcap on the back driver's side tire.

These statements were admissible, as Officer McGowan provided no

testimony positively identifying defendant's minivan as the same vehicle seen

on surveillance footage. Instead, the officer explained how the footage led the

police to pursue additional avenues of investigation.

On balance, given the neutral language law enforcement used to describe

their interactions with defendant, their observations of his vehicle and what

they perceived from surveillance video, and considering that jurors viewed the

surveillance footage for themselves and determined what weight, if any, to

give to the testimony of Officer McGowan and Detective McEvoy, we discern

no reversible error regarding the challenged lay testimony.

C. Defendant's Sentence

Lastly, regarding Point VI, defendant argues he should be resentenced

because the judge mistakenly found him ineligible for Drug Court and failed to

explain why four consecutive prison terms of equal length were imposed.

Although we are not persuaded by these contentions, in an abundance of

caution, we remand this matter for resentencing due to the Court's recent

holding in Torres.

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37
 A defendant's sentence is reviewed for an abuse of discretion. State v.

Jones, 232 N.J. 308, 318 (2018). But "a trial court's application of the Drug

Court Statute and Manual . . . involves a question of law," and thus is subject

to de novo review. State v. Maurer, 438 N.J. Super. 402, 411 (App. Div.

2014).

Here, defendant contends the judge erred in deeming him ineligible for

Drug Court.9 We disagree. Because defendant was serving an existing prison

sentence in Pennsylvania when he was sentenced for his New Jersey

convictions, he was unable to participate in Drug Court, but more importantly,

his ongoing imprisonment precluded imposition of a non-custodial

9
As we have observed:

[T]here are two tracks available for entry into our
Drug Courts. Track One is available to those eligible
for special probation pursuant to N.J.S.A. 2C:35-
14(a), and who otherwise satisfy the statutory criteria
. . . . Track Two permits applicants to be admitted
into Drug Court under the general sentencing
provisions of the Code of Criminal Justice.

[State v. Figaro, 462 N.J. Super. 564, 566 (App. Div.
2020) (internal citations and quotation marks
omitted).]

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38
probationary sentence. N.J.S.A. 2C:44-5(f)(1).10 See also State v. Crawford,

379 N.J. Super. 250, 259 (App. Div. 2005).

Also, per Article V of the IAD, the sending State offers "temporary

custody" of a prisoner to the receiving State and requires the prisoner to be

returned to the sending State "at the earliest practicable time consonant with

the purposes of [the IAD]." N.J.S.A. 2A:159A-5(e). Thus, defendant was in

New Jersey temporarily under the IAD, and had to be returned to Pennsylvania

to complete his sentence there before he began serving his New Jersey

sentence. As the judge properly noted, "[D]rug [C]ourt is not available to

[defendant] because he's got an out[-]of[-]state sentence that really precludes

him from participating. . . . The process is he returns to Pennsylvania . . . to

continue the service of his sentence there first." 11

Additionally, we are not convinced defendant's sentence is excessive. In

imposing a sentence, the judge "first must identify any relevant aggravating

10
N.J.S.A. 2C:44-5(f)(1) instructs that a court "shall not sentence to probation
a defendant who is under sentence of imprisonment, except as authorized by
[N.J.S.A. 2C:43-2(b)(2)]" (the split sentence provision).
11
Given the passage of time since defendant's sentencing in New Jersey, he
may now be eligible for a sentence change under Rule 3:21-10(b)(1) if he has
completed his Pennsylvania sentence. This Rule permits a motion for a change
in sentence to be filed at any time "to permit entry of the defendant into a
custodial or non-custodial treatment or rehabilitation program for drug or
alcohol abuse." R. 3:21-10(b)(1).

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39
and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the

case." State v. Case, 220 N.J. 49, 64 (2014). The trial court is required to

"determine which factors are supported by a preponderance of [the] evidence,

balance the relevant factors, and explain how it arrives at the appropriate

sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989).

We cannot "substitute [our] judgment for that of the sentencing [judge,]"

State v. Fuentes, 217 N.J. 57, 70 (2014), and are 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)).]

When deciding whether to impose a consecutive sentence, trial courts

are to consider the following factors outlined under State v. Yarbough, 100

N.J. 627, 643-44 (1985):

(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;

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40
 (3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:

(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.12

12
The Yarbough Court originally outlined six factors, but the sixth factor,
which provided "there should be an overall outer limit on the cumulation of
consecutive sentences for multiple offenses not to exceed the sum of the
longest terms (including an extended term, if eligible) that could be imposed
for the two most serious offenses," was superseded by a 1993 amendment to
N.J.S.A. 2C:44-5(a), which states "[t]here shall be no overall outer limit on the
cumulation of consecutive sentences for multiple offenses."
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41
 Recently, the Court reinforced the standards for imposing consecutive

sentences and held that "essential to a proper Yarbough sentencing

assessment" is "[a]n explicit statement, explaining the overall fairness of a

sentence imposed on a defendant for multiple offenses in a single proceeding."

Torres, 246 N.J. at 268.

Here, the judge found aggravating factors three, six and nine, N.J.S.A.

2C:44-1(a)(3) (risk of reoffense), (6) (prior criminal history), and (9) (need to

deter), and gave these factors "significant weight." Additionally, he found

mitigating factor six, N.J.S.A. 2C:44-1(b)(6) (defendant will compensate the

victims for damages sustained) and afforded this factor "moderate weight."

The judge also concluded the aggravating factors substantially outweighed the

mitigating factor.

We see no reason to second-guess the judge's aggravating and mitigating

factors analysis, considering defendant's history of substance abuse and

significant criminal record, which consisted of "[twenty-five] felony

convictions, [and] three misdemeanor disorderly persons convictions[,]" many

resulting from burglaries in Pennsylvania during the same period he committed

multiple burglaries in New Jersey.

Also, we note that when he applied the Yarbough factors, the judge

carefully explained why he found the prison terms imposed should run

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42
consecutively, and why he rejected defendant's argument for concurrent

sentences. Although defendant urged the judge to impose concurrent

sentences for each offense, based on his offenses being "fairly compact" in

time and place, and committed with "one sole objective" for committing the

crimes, namely "to feed [his] drug habit," the judge rejected this argument,

explaining:

[T]he events of each day appear to be a continuum of
criminal activity on the part of the defendant, such
that those particular events should run concurrent to
each other. However, I do find that the defendant
made a conscious decision from one date to the next to
go back out and continue his criminal activity. It
would be another thing if he continued through the
daylight hours into the following day, and the next
day, to continue to commit his burglaries . . . along the
way, but . . . each individual date he consciously
decided to go back out and commit more burglaries
rather than stop his criminal behavior. Also, where he
had an opportunity to reflect potentially on the
criminal behavior the night . . . or the day before, that
reflection . . . did not cur[b] his criminal activity. He
went back out making that conscious choice.

In giving weight to the first Yarbough factor, i.e., "there [are] no free

crimes[,]" the judge reasoned, "[i]f all of these were to be run concurrent[ly], it

certainly would minimize the defendant's criminal behavior, and certainly

would send the wrong message to the public [so] when they have an

opportunity to curb their behavior and they don't, they should [receive]

separate and distinct sentences." Additionally, the judge determined
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43
defendant's sentences should run consecutive to defendant's Pennsylvania

sentence because defendant "did not get the message [after] being arrested . . .

in New Jersey for . . . criminal conduct, and instead continued to commit

crimes in Pennsylvania" in December 2016, following his release from custody

in New Jersey.

After imposing concurrent sentences for each batch of burglaries

committed on a single day "because they continued relatively close in time,

albeit, maybe not geographically . . . close," the judge imposed the standard

fines and ordered restitution for various victims. 13 He also noted defendant

would be eligible for parole in approximately "five years and four months." 14

Defendant's aggregate sentence, while harsh, does not shock our judicial

conscience. State v. Tillery, 238 N.J. 293, 323 (2019). But in an abundance of

caution, we vacate the sentence and remand for resentencing, consistent with

the Court's guidance in Torres, to allow the judge to provide "[a]n explicit

statement, explaining the overall fairness" of the sentences imposed. 246 N.J.

at 268.

13
The judge also properly merged the theft and criminal mischief charges into
the burglary charges for each business.
14
The Department of Corrections website reflects defendant's parole
eligibility date is in May 2024.
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 To the extent we have not addressed any remaining contentions, it is

because they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed as to defendant's convictions and remanded for resentencing.

We do not retain jurisdiction.

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