STATE OF NEW JERSEY v. SHRONDA PAMPLIN

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3817-02T4
6635-02T4
1952-03T4
 
3817-02T4

A-6635-02T4

A-1952-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHRONDA PAMPLIN,

Defendant-Appellant.

______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHANTELLE JOHNSON,

Defendant-Appellant.

______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LORENZO MELVIN,

Defendant-Appellant.

______________________________

 

Submitted October 12, 2005 - Decided March 6, 2006

Before Judges Fall, Parker and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-07-1903.

Yvonne Smith Segars, Public Defender, attorney for appellant Shronda Pamplin (Jack Gerber, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Chantelle Johnson (Arthur J. Owens, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Lorenzo Melvin (Robert P. Williams, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent on all appeals (Kenneth P. Ply, Special Deputy Attorney General, of counsel and on the brief).

Appellant Chantelle Johnson filed a pro se supplemental brief.

PER CURIAM

These are back-to-back appeals consolidated for the purpose of this opinion.

Following a jury trial, defendants Lorenzo Melvin, Chantelle Johnson, and Shronda Pamplin were convicted of offenses arising out of events occurring during the early morning hours of December 19, 1999. All three defendants appeal their convictions and the resulting sentences. We affirm their convictions and the sentence of defendant Pamplin. We vacate the sentences of defendants Melvin and Johnson and remand for sentencing in light of the recent Supreme Court decisions in State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005).

On July 13, 2000, an Essex County grand jury returned Indictment No. 00-07-1903 charging defendants with conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, a second degree crime (Count One); kidnapping, N.J.S.A. 2C:13-1b(1), a first degree crime (Count Two); robbery, N.J.S.A. 2C:15-1, a first degree crime (Count Three); terroristic threats, N.J.S.A. 2C:12-3, a third degree crime (Count Four); unlawful possession of a firearm, N.J.S.A. 2C:39-5b, a third degree crime (Count Nine); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, a second degree crime (Count Ten).

The indictment also separately charged defendant Melvin with aggravated assault, N.J.S.A. 2C:12-1b(1), a second degree crime (Count Five); aggravated sexual assault, N.J.S.A. 2C:14-2a(3), a first degree crime (Count Six); aggravated sexual assault, N.J.S.A. 2C:14-2a(3), a first degree crime (Count Seven); and aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, a third degree crime (Count Eight). A second indictment, Indictment No. 00-07-1904, charged Melvin with possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b(1), a second degree crime.

Defendants pled not guilty to all charges. Prior to trial, defendants Johnson and Pamplin unsuccessfully moved to sever prosecution of the charges against them from those lodged against Melvin.

At trial, the jury was presented with the following facts. On December 17, 1999, the victim, who had been visiting a friend in Jersey City, arrived at Newark Penn Station on the PATH at around 3:30 a.m. He decided to walk home because he was low on cash and the buses were no longer operating at that hour.

While walking on South Orange Avenue, the victim saw three people standing across the street. One of the persons called out to the victim. As the victim crossed the street, he was asked whether he lived in the neighborhood and was also asked the time. As the victim looked down at his watch, Melvin grabbed him by the coat and put a gun to his stomach. The defendants forced the victim into the adjacent building. Once inside, the defendants demanded money. When Melvin realized the victim only had about sixty cents, he struck him over the head with the gun. The victim fell to the floor. Johnson and Pamplin then took the victim's black bubble jacket, denim jacket, boots, watch, pager and a shoulder bag containing some CDs. Melvin gave his sneakers to the victim and put on the victim's boots. The defendants also took his wallet containing his bankcard.

The victim told the defendants that he had $200 in the bank. Defendants forced the victim to provide his personal identification number (PIN) and threatened that he would be killed if there was less than $200 in the account. Melvin told Johnson and Pamplin to hail a taxi.

With the two women gone, Melvin ordered the victim to touch his penis through his jeans. Johnson and Pamplin interrupted the encounter to announce they were unable to secure a cab, but Melvin instructed them to go back outside to continue to search for a cab. He then ordered the victim to perform fellatio. About a minute later, Pamplin and Johnson announced that a cab was waiting.

The defendants took the victim outside and all four entered the taxi, which drove them to a First Union Bank. The victim sat directly behind the driver, next to Melvin, who held a gun to his side.

When the taxi arrived at the bank, Pamplin and Johnson initially entered while Melvin and the victim waited in the taxi. After Pamplin and Johnson did not return, Melvin forced the victim out of the taxi and into the bank. Just as Melvin and the victim approached the ATM, Johnson was able to successfully withdraw money from the machine. Everyone then returned to the waiting taxi.

The taxi dropped off Pamplin and Johnson two blocks from the location where the initial encounter occurred. Melvin then told the taxi driver to take him and the victim to Prince Street, but Melvin changed the location where he wanted to be taken several times. While the taxi traveled in different locations, Melvin forced the victim to masturbate him and perform fellatio. The taxi eventually stopped in an area of the projects unfamiliar to the victim.

Once they left the cab, Melvin guided the victim into the projects and down a ramp along the side of a building. While doing this, Melvin reminded the victim to follow all instructions or die. Once the men reached the bottom of the ramp, Melvin forced the victim to resume performing fellatio. Melvin also sodomized the victim and thereafter ejaculated into the victim's mouth.

Next, Melvin led the victim to an adjacent building where he told the victim to sit facing the building for thirty minutes or risk being shot in the head. The victim believed that Melvin was testing him and therefore remained seated facing the building for forty-five minutes before he left the area.

The victim then walked around in the cold for a couple of hours before he flagged down a police car. The officer that the victim flagged down testified the victim was "frightened, cold, shivering, as if he . . . just went through a traumatic experience."

The police took the victim back to the initial crime scene and the First Union Bank where defendants had used the ATM. Still photos of the defendants were made from the security tapes at the bank. Through canvassing the area of the crime scene, the police apprehended and arrested Johnson and Pamplin.

During questioning, Pamplin gave a statement implicating Melvin. Police later apprehended him at his aunt's residence. Melvin was still in possession of the victim's boots at the time of his arrest.

Melvin testified that he had been drinking at a bar earlier on the night in question. He stated that while he was stopped on South Orange Avenue with Johnson and Pamplin, the victim approached and solicited sex from them. The four went to an apartment where others were using drugs and engaging in sexual acts. After several hours of sex, the victim refused to pay. The four then took a taxi to a bank ATM where money to pay them was withdrawn. After Johnson and Pamplin were dropped off, Melvin and the victim went to a local bar. It was closed, so Melvin and the victim went to Melvin's aunt's house. She refused to allow them to enter. He and the victim then parted company.

Johnson testified that she and Pamplin were forced by Melvin to commit the robbery. She also testified that Melvin forced them to go through the victim's bag, hail the cab, withdraw the money, and afterwards leave the cab.

The jury convicted Melvin on all counts, but on the second degree aggravated assault charge (Count Five), he was found guilty of the lesser included offense of fourth degree aggravated assault. The jury found that Counts Two, Three, Six and Seven were crimes of violence.

Johnson and Pamplin were found guilty of conspiracy to commit robbery (Count One), and on Count Three, first degree robbery, they were convicted of the lesser included offense of second degree robbery. The jury found that second degree robbery was a crime of violence. The court merged the conspiracy convictions for Johnson and Pamplin into the robbery convictions. The court then sentenced Johnson to ten years imprisonment and Pamplin to a presumptive term of seven years imprisonment. Both received an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Fines, fees and penalties were also assessed against both defendants.

The court also merged Melvin's convictions for conspiracy to commit robbery (Count One) and possession of a weapon for an unlawful purpose (Count Ten) into his robbery conviction (Count Three) and then sentenced him on those offenses to twenty years imprisonment, with an eighty-five percent NERA parole disqualifier and five years of parole supervision. He was sentenced to life imprisonment on the kidnapping conviction (Count Two), with a twenty-five year period of parole ineligibility pursuant to the Persistent Offenders Statute. For the terroristic threats conviction (Count Four), the trial court sentenced Melvin to five years imprisonment. He was sentenced to an eighteen-month custodial sentence on the fourth degree aggravated assault conviction (Count Five). He received two consecutive twenty-year terms of imprisonment for the first degree aggravated sexual assault convictions (Counts Six and Seven) with an eighty-five percent NERA parole disqualifier on each conviction. For the aggravated criminal sexual contact conviction (Count Eight), Melvin was sentenced to a five-year term of imprisonment. On his conviction for unlawful possession of a weapon (Count Nine), Melvin was sentenced to a five-year period of incarceration.

Finally, following the verdict, the trial judge conducted a hearing on the second indictment. He found Melvin guilty of possession of a weapon by a convicted felon. Melvin received twenty years imprisonment with an eighty-five percent NERA disqualifier for this offense.

The trial judge ordered the sentences for robbery (Count Four), criminal sexual contact (Count Eight), and unlawful possession of a weapon (Count Nine) to run concurrent to the sentence for kidnapping (Count Two). All other sentences were run consecutive. The aggregate sentence for all counts in both indictments was life plus sixty-one and one-half years, seventy-seven and one-half years without parole. Appropriate fines and penalties were also imposed.

On appeal, defendants raise the following points:

Melvin:

POINT I

THE COURT'S CHARGE TO THE JURY WAS FATALLY FLAWED IN THAT IT IMPERMISSIBLY COMMENTED UPON THE EVIDENCE AND DIRECTED A VERDICT AGAINST THE DEFENDANT.

POINT II

UNDER THE TEST DEVELOPED IN STRICKLAND/FRITZ THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

IT WAS ERROR TO DENY THE MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT IV

THE SENTENCE WAS MANIFESTLY EXCESSIVE.

Johnson:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER HER TRIAL FROM THAT OF CO-DEFENDANT MELVIN.

POINT II

THE TRIAL COURT ERRED IN ADMITTING UNDULY PREJUDICIAL OTHER CRIMES EVIDENCE.

POINT III

THE TRIAL JUDGE ERRED IN SENTENCING DEFENDANT AS THE PUNISHMENT WAS CREATED FOR THE CRIMINAL, RATHER THAN THE CRIME.

Pamplin:

POINT I

THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR SEVERANCE.

POINT II

THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL.

POINT III

THE IMPOSITION OF THE 85% PAROLE DISQUALIFIER PURSUANT TO THE NO EARLY RELEASE ACT MUST BE VACATED AS A MATTER OF LAW.

POINT IV

THE SENTENCE IS EXCESSIVE AND UNDULY PUNITIVE.

POINT V

THE MATTER SHOULD BE REMANDED TO CONDUCT AN EVIDENTIARY HEARING ON COUNSEL'S ADVICE TO DEFENDANT TO NOT TESTIFY.

Our careful review of the record convinces us there is no basis for reversing the convictions. While these appeals were pending, however, the Supreme Court invalidated New Jersey's presumptive sentencing scheme. Natale, supra, 184 N.J. at 484. Since Melvin and Johnson received greater than the presumptive sentences for their convictions, and because the trial court considered the presumptive term in sentencing Pamplin, we vacate the sentences imposed and remand for re-sentencing consistent with Natale and Abdullah. Beyond our remand on the sentences, only the following discussion is appropriate in a written opinion. R. 2:11-3(e)(2).

I.

SEVERANCE MOTIONS

Johnson and Pamplin contend the trial judge erred when he failed to grant their motions to sever their charges from those against Melvin. Pamplin additionally argues that severance was further warranted as to her charges because Johnson's testimony placing Pamplin at the scene of the robbery violated her right against self-incrimination.

The determination of whether to grant or deny a motion for severance is left to the sound discretion of the trial judge, and that decision will not be set aside in the absence of a clear showing that the decision constituted a mistaken exercise of judicial discretion. State v. Brown, 170 N.J. 138, 160 (2001).

In New Jersey, there is a judicial preference to try co-defendants jointly. Ibid. The rationale underlying this preference is to promote judicial efficiency, accommodate witnesses and victims, avoid inconsistent verdicts, and facilitate a more accurate assessment of the relative culpability of the defendants. Ibid. Thus, where two or more defendants are charged with offenses arising out of the same act or transaction, or series of acts or transactions, constituting an offense, the disposition of the charges will more likely occur in a single proceeding. Id. at 159-60.

In light of the strong preference for joint trials for co-defendants, the test for granting severance "is a rigorous one." State v. Brown, 118 N.J. 595, 605-06 (1990). "Central to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)) (brackets in original). "If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" Ibid. (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)).

The charges against Johnson, Pamplin and Melvin clearly arose out of the "same act or transaction or the same series of acts or transactions." Brown, supra, 170 N.J. at 159-60. Although the sexual offenses relate solely to Melvin's actions, the offenses were inextricably linked to the entire course of events. Ibid. Consequently, evidence of Melvin's actions would have been admissible in a separate trial of Johnson and Pamplin because his conduct occurred during the same time frame and "establishes the context of the criminal event, explains the nature of, [and] presents the full picture of the crime to the jury." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Moreover, there was no risk the sexual offenses charged against Melvin would be imputed to Johnson or Pamplin. In considering the issue, the trial judge reasoned:

In this case the female co-defendants were not present when Lorenzo Melvin committed the sexual offenses. The sexual offenses are of a nature that they could only have been performed by one male on another, and because of this impossibility of the female co-defendants' involvement in the sexual offenses performed by Melvin, there could be no prejudice in my view to either of the female co-defendants other than the theoretical, rejected danger by association. Even if the lack of that prejudice was not so clear, the jury charge and verdict sheet will be easily crafted to instruct the jury not to consider the sexual offenses other than with regard to the defendant Melvin.

We therefore find the trial judge did not abuse his discretion when he denied the severance motions. See State v. Sanchez, 143 N.J. 273, 295 (1996).

As a further basis for severance, Pamplin relies on Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed 2d 476 (1968), to argue that Johnson's testimony placing her in the lobby of 418 South Orange Avenue at the time of the initial robbery was a surprise that she could not rebut except by waiving her Fifth Amendment privilege against self-incrimination. We disagree.

In Bruton, supra, the party making the out-of-court statement did not testify. Id. at 136, 88 S. Ct. at 1628, 20 L. Ed. 2d at 485. Here, Johnson testified and Pamplin's attorney had an opportunity to fully cross-examine her. We also observe that even in the absence of Johnson's testimony, the victim's testimony placed Pamplin at the bank and photographs were admitted into evidence that also placed Pamplin at the bank with Johnson, Melvin, and the victim.

II.

INEFFECTIVE ASSISTANCE OF COUNSEL

A. PAMPLIN

Pamplin argues that her attorney's advice that she not testify constituted ineffective assistance of counsel that was so prejudicial it deprived her of a fair trial. State v. Fritz, 105 N.J. 42, 52 (1987). She acknowledges her argument is better served in a petition for post-conviction relief pursuant to R. 3:22; however, she asks that we consider her claim in order to preserve judicial economy. We decline to do so because resolution requires that we consider matters outside the record, namely, trial strategy employed by her attorney. State v. Preciose, 129 N.J. 451, 460 (1992).

B. MELVIN

Melvin contends his attorney's actions also constituted ineffective assistance of counsel on two grounds: 1) counsel failed to object to inappropriate comments by the trial judge; and 2) counsel failed to effectively argue the defendant's motion to acquit. These claims involve issues fully disclosed in the record and are therefore appropriate for resolution on direct appeal. State v. Allah, 170 N.J. 269, 285 (2002).

The comment at issue was made by the judge, who stated, "[b]ecause this case involves conduct which threatened to cause bodily harm . . . ." Although a better statement could have been, "because this case involves conduct which [allegedly] caused or threatened to cause bodily harm[,]" when read in its entirety, the jury charge clearly and correctly instructed the jury on the appropriate legal principles and did not have the capacity to prejudice the defendant by confusing or misleading the jury. State v. Nelson, 173 N.J. 417, 445, 451-52 (2002).

Throughout the charge, the trial judge instructed the jury about the burden of proof, including the fact that the State at all times bore the burden of proof. The court also clearly articulated the defenses raised by Melvin:

In this case, as I've already explained to you, the defendant is charged with a violation of a provision of our criminal law. Accordingly, you are advised that if the victim was not harmed or threatened in a manner that the statute seeks to prevent because he actually consented to the alleged criminal conduct, then the defendant has a valid defense.

Of course, you're reminded that the State has the burden of proving each element of an offense beyond a reasonable doubt, and must also prove beyond a reasonable doubt that the victim did not give his legally effective consent, as I've defined that term to you.

Thus, if you find that the State has not proven each element of the offense beyond a reasonable doubt, or also has not disproved the defense of consent beyond a reasonable doubt, then you must find the defendant not guilty.

The trial transcript supports a finding that an omission of the term "alleged" in one line of the jury instructions did not taint the instructions as a whole. See State v. Medina, 147 N.J. 43, 55 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997). We therefore conclude the failure to object to the judge's comment was not a professional error that deprived Melvin of a fair trial. Fritz, supra, 105 N.J. at 52.

Melvin also urges that his attorney's motion for a judgment of acquittal at the end of the State's case was perfunctory and failed to highlight critical omissions in the State's case that justified the grant of the motion. Specifically, defendant maintains the thrust of his defense was that the victim had engaged in consensual sex. Rather than emphasize this point, defense counsel merely made the motion and allowed the judge to rule without the benefit of all the appropriate arguments.

The record reveals that defense counsel made a specific application for an acquittal on the kidnapping charge and a general application as to the remaining charges. In response to the motion, the trial judge stated:

Certainly if you look at [State v. Johnson, 309 N.J. Super. 237 (App. Div. 1998),] Appellate Division case, certification was denied at 156 N.J. 387 [emphasis added] in 1998, even if you assume that the jury for some reason find no harm came to the victim, he certainly was not left in a safe place. Certainly leaving a victim out in the middle of anyplace, he didn't even have the foggiest idea where he was, certainly after what had befallen him, and one must assume giving all appropriate inferences to the testimony offered on behalf of the State that in addition to the fact that the victim was, in fact, clearly harmed based on, if one finds the witnesses offered by the State to be credible, so therefore, was not released unharmed. Nor do I believe based upon the testimony, when giving it all due appropriate inferences, do I believe that he was left in a safe place.

So certainly with regard to the kidnapping charge to the degree to which counsel emphasizes that one, the motion is denied.

As to the balance of the counts in the indictment, there certainly was testimony, if the jury finds that testimony to be credible, there is a sufficient basis for a rational reasonable jury to find that the defendant, Melvin, is guilty beyond a reasonable doubt of the offenses for which he's been charged in the indictment. Therefore the motion as to the balance of the counts of the indictment is denied.

We agree that beyond the kidnapping charge, counsel failed to articulate any additional facts in support of the motion for an acquittal on the remaining charges. We also agree the trial judge failed to articulate the specific factual basis to support his conclusion that the record could support a jury finding that Melvin was guilty of the remaining charges beyond a reasonable doubt.

A motion at the end of the State's case should not be treated as a mere formality. Atlas v. Silvan, 128 N.J. Super 247, 250 (App. Div. 1974). Nonetheless, we are satisfied that the motion was properly denied. Several witnesses testified on behalf of the State, including the victim, a Newark patrol officer who found the victim, a Newark detective, a First Union Bank fraud investigator, an Emergency Room doctor, a sexual assault nurse, and a State Police laboratory technician. Additionally, the State introduced photographs of all three defendants and the victim at the First Union Bank, as well as other physical evidence that included Melvin's sneakers, the victim's boots and jacket, and bank statements. Thus, the testimonial and physical evidence provided substantial evidence from which the jury could find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967).

III.

REFERENCE TO SUBSEQUENT USE OF ATM CARD

Johnson contends the trial court erred by allowing the State to make references to her alleged use of the victim's ATM card the day after the robbery.

N.J.R.E. 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

N.J.R.E. 404(b), however, "does not apply to uncharged acts of misconduct that are components of the crime that is the subject of the trial." State v. Long, 173 N.J. 138, 161 (2002)(quoting State v. Martini, 131 N.J. 176, 241 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995)).

Johnson challenges the following comments made by the State:

If both Miss Johnson and Miss Pamplin were under duress, had nothing to do with this, were totally scared out of their minds, it's very unusual there's continuing use of a bank card.

Defense counsel immediately objected to the State's comments. The trial judge replied:

I tend to disagree there's no proof of that. [The victim] said that the card was taken from him by these three defendants and he didn't know where it was. Then we see later on the same day somebody is using the card.

. . . .

There was plenty [of] circumstantial evidence of the fact that these defendants were using the card, unless they get on the stand and say they gave the card to somebody else.

We find no merit to Johnson's argument. The relevant evidence presented to the jury included evidence that she had been in possession of the ATM card at the bank. Evidence that the card was being used within a day of the robbery was arguably circumstantial evidence of continued voluntary use of the card by at least one or more of the defendants. This evidence was particularly probative in light of the disputed testimony as to who was last in possession of the card.

IV.

SENTENCES

Defendants contend the sentences were manifestly excessive. In addition, Pamplin contends the imposition of the eighty-five percent parole disqualifier is contrary to law.

In Natale, supra, the Supreme Court reconsidered New Jersey's sentencing structure in light of the United States Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403, 413 (2004); and United States v. Booker, 543 U.S. 220, ___, 125 S. Ct. 738, 757, 160 L. Ed. 2d 621, 650 (2005). The Court held that a "sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale, supra, 184 N.J. at 466. Because the Court concluded the presumptive term is the statutory maximum, a sentence above the presumptive term cannot be based solely on judicial factfinding. Id. at 484. Instead, Apprendi requires the question to be submitted to the jury. Ibid.

Although the Court in Natale, supra, invalidated New Jersey's presumptive sentencing scheme, in Abdullah, supra, it affirmed the constitutionality of N.J.S.A. 2C:43-6(b), permitting a sentencing court to impose a parole disqualifier based solely upon judicial factfinding. 184 N.J. at 511-12. The Court also reaffirmed the usage of the criteria developed 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), when determining whether to run sentences concurrently or consecutively. Abdullah, supra, 184 N.J. at 514-15.

We are satisfied that the consecutive sentences imposed as to Melvin reflect an appropriate application of the Yarbough factors. See Ibid. We also conclude the record supports imposition of the NERA parole disqualifier as to all three defendants. Id. at 511-12.

We must, however, remand the sentences imposed upon Melvin and Johnson for sentencing consistent with Natale, supra. In resentencing, the trial court's decision for each defendant must be based on the original sentencing record and must not exceed the sentences originally imposed. Natale, supra, 184 N.J. at 495-96.

 
Affirmed in part, reversed in part. We do not retain jurisdiction.

25

A-3817-02T4

March 6, 2006

 


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