STATE OF NEW JERSEY v. K.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1727-03T41727-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

K.B.,

Defendant-Appellant.

________________________________________________

 

Argued May 10, 2006 - Decided June 27, 2006

Before Judges Conley and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Ind. No. 01-08-1497.

Patrick T. Cronin, Designated Counsel,

argued the cause for appellant (Yvonne

Smith Segars, Public Defender, attorney;

Mr. Cronin, of counsel and on the brief).

Jack R. Martin, Assistant County Prosecutor,

argued the cause for respondent (Jeffrey S.

Blitz, Atlantic County Prosecutor, attorney;

Mr. Martin, of counsel and on the brief).

PER CURIAM

Defendant K.B. was charged by way of indictment with the following offenses: sexual assault, N.J.S.A. 2C:14-2b (counts one and two); criminal sexual contact, N.J.S.A. 2C:14-3b

(count three); endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts four, five and six); and child abuse, N.J.S.A. 9:6-3 (counts seven, eight and nine). Following a two-day jury trial in August 2002, defendant was found guilty on counts one, two and three, of the lesser included offense of fourth-degree lewdness, N.J.S.A. 2C:14-4b(1), and on counts four, five and six as charged. Counts seven, eight and nine were dismissed by the trial judge before submission of the case to the jury.

At sentencing, the judge merged counts one, two and three with counts four, five and six. On count four, defendant was sentenced to five years in prison with two and one-half years of parole ineligibility; on count five, the judge imposed a four-year term of incarceration with two years of parole ineligibility, consecutive to the sentence on count four; on count six, a four-year prison term was imposed, concurrent to the sentences on counts four and five. Thus, defendant's aggregate jail term was nine years with four and one-half years of parole ineligibility. Appropriate penalties and assessments were also imposed, as well as DNA testing and Megan's Law registration including community supervision for life.

M.H. lived in an apartment complex in Pleasantville with her three daughters, T.H., eleven years-old at the time, S.H., thirteen years-old and C.H., who was not named as a victim in the indictment. On June 27, 2001, between five and six p.m., T.H. and S.H. were playing with friends outside of the apartment complex which is adjacent to a wooded area. As M.H. was watching television, several of the girls, including T.H. and S.H., ran into her apartment and said that, "[t]here was a guy in the woods showing his stuff and doing nasty stuff." M.H. told them to go back outside but not to go near the man, later identified as defendant. Nevertheless, a few minutes later, the children returned and told M.H. that defendant was following them and exhibiting his penis to them. As a result, M.H. went outside. The children pointed to defendant who was walking away. M.H. told the children, "He's gone now" and went back inside. However, a few minutes later, the children came back and said that the man was continuing his activity. When M.H. went back outside, the police were already with defendant.

T.H. testified that she saw defendant in the woods playing with his penis. Defendant sat down, pulled his pants to one side and was masturbating or manipulating his penis. Defendant was facing the children, looking right at them. This activity continued for about five minutes, during which time defendant moved from tree to tree, getting closer to the children. S.H. observed defendant sitting against a tree. Defendant had his hand on his penis and was masturbating. Defendant's shorts were pulled to the side and his penis was exposed. Defendant was looking at S.H. while engaging in the activity.

T.B. lived next door to T.H. and S.H.; she was ten years-old at the time. T.B. saw defendant masturbating as he sat by a tree looking at them. She saw defendant's penis and confirmed that defendant moved closer to the girls, moving from tree to tree. Defendant was facing them while masturbating. T.B. went with the other girls to tell M.H. She also told her father, who came out of the house and saw defendant sitting against a tree with his legs spread apart. Defendant appeared to be playing with leaves between his legs. T.B. called the police.

Upon arrival, Officer Richard Tomasello saw defendant standing in a wooded area with his dog. Defendant identified himself as K.B., age fifty-one. Detective Luis Ruis described defendant's attire as a black t-shirt with loose fitting sweat shorts. Defendant was not wearing underwear.

Defendant appeals, presenting the following arguments:

POINT I

THE TRIAL COURT ERRED IN ITS CHARGE TO THE JURY ON THE ENDANGERMENT CHARGE ON COUNTS FOUR THROUGH SIX. (Not Raised Below)

POINT II

THE SENTENCE IMPOSED ON DEFENDANT WAS EXCESSIVE AS THE TRIAL COURT IMPROPERLY SENTENCED DEFENDANT TO CONSECUTIVE SENTENCES ON COUNTS FOUR AND FIVE. (Not Raised Below)

POINT III

THE SENTENCE IMPOSED ON COUNT FOUR OF THE INDICTMENT VIOLATED DEFENDANT'S RIGHT TO A JURY TRIAL UNDER THE RATIONALE OF STATE V. NATALE. (Not Raised Below)

POINT IV

THE TRIAL COURT ERRED IN ALLOWING THE VICTIM'S MOTHER TO DETAIL THE HEARSAY STATEMENTS OF HER DAUGHTER TO THE JURY. (Not Raised Below)

We have considered defendant's contentions in Points I and IV in light of the record and applicable law and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As a result, we affirm defendant's convictions.

With respect to defendant's argument that his five-year sentence on count four violated the precepts of State v. Natale, 184 N.J. 458 (2005), we agree. Defendant received a sentence in excess of the presumptive term (four years) for a third-degree offense. As a result, he must be resentenced consistent with Natale. We reject the State's argument that because the judge relied on aggravating factors three and nine, N.J.S.A. 2C:44-1a(3),(9), the sentence was solely based on defendant's prior record and is, therefore, exempted from Natale. Id. at 466. We cannot say that the sentence was based solely on defendant's prior record; indeed, the judge did not even cite aggravating factor six. N.J.S.A. 2C:44-1a(6).

Defendant's remaining argument is that the imposition of consecutive sentences on counts four and five did not accord with the principles first expressed in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and most recently explicated in State v. Carey, 168 N.J. 413 (2001) and State v. Molina, 168 N.J. 436 (2001).

The Yarbough guidelines are:

(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) 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;
 
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
 
(6) 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.

[Yarbough, supra, 100 N.J. at 643-44; Carey, supra, 168 N.J. at 422-23.]

As the Court has noted, it is the third guideline which "provides the clearest guidance to sentencing courts faced with a choice between concurrent and consecutive sentences." Carey, supra, 168 N.J. at 423.

Here, the judge only said that the consecutive sentences were appropriate "given the multiplicity of victims." That statement alone provides an insufficient basis upon which to uphold these consecutive sentences. However, "we have the discretion to affirm a consecutive sentence without the reasons having been expressly stated where 'the facts and circumstances leave little doubt as to the propriety of the sentences,' and the sentences are not shown to be 'clearly mistaken.'" State v. Soto, ____ N.J. Super. ____, (App. Div. May 4, 2006) (slip op. at 12) (quoting State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.), certif. denied, 177 N.J. 492 (2003)). Here, the "facts and circumstances" not only fail to "leave little doubt as to the propriety of the sentences," ibid., but also leave considerable doubt as to their propriety. Defendant's offenses and their objectives were not "predominantly independent of each other," Yarbough, supra, 100 N.J. at 644, "but were, rather, inseparable from each other." Indeed, viewed from defendant's perspective, he only engaged in one activity. The offenses did not involve violence. The offenses were committed at the same time and place, demonstrating, "a single period of aberrant behaviour." Ibid. There were, of course, multiple victims, as the judge noted. While several, the convictions are not "numerous." Ibid. Thus, only the multiplicity of victims is present in this case.

While multiplicity of victims alone was held sufficient to sustain consecutive sentences in Carey and Molina, the facts in those cases were far removed from those presented here. In each case, the defendant's conduct, which led to vehicular homicide convictions, resulted in multiple deaths. The Court held that "in vehicular homicide cases, the multiple-victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths or serious bodily injuries have been inflicted upon multiple victims by the defendant." Carey, supra, 168 N.J. at 429-30; Molina, supra, 168 N.J. at 442. Such considerations are obviously wholly inapplicable here.

While we recognize the Court's admonition "that appellate courts should exercise original sentencing jurisdiction sparingly," Carey, supra, 168 N.J. at 424, we believe this is an appropriate case in which to do so. Based on our analysis of the Yarbough factors, "applied qualitatively, not quantitatively," id. at 427, we conclude that the consecutive sentences are not sustainable. We note that since a maximum term was imposed, albeit subject to reconsideration under Natale, a remand is not necessary to provide the sentencing court with a chance to "restructure" the sentence. Id. at 424. While despicable, defendant's abhorrent conduct constituted but one brief episode. Concurrent sentences will adequately provide a proper measure of punishment for his crimes.

 
Conviction affirmed; sentence vacated and remanded for reconsideration and modification consistent with this opinion.

(continued)

(continued)

9

A-1727-03T4

RECORD IMPOUNDED

June 27, 2006