STATE OF NEW JERSEY v. LUIS A. CRUZ, JR

This case can also be found at 197 N.J. 14, 960 A.2d 744.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4078-02T44078-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS A. CRUZ, JR.,

Defendant-Appellant.

_______________________________________

 

Argued February 4, 2008 - Decided

Before Judges Stern, A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 96-10-535.

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).

Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief).

PER CURIAM

This criminal matter started out as a capital case. There was a first trial at which the jury was unable to return a unanimous verdict against defendant Luis A. Cruz, Jr. At the second trial, the State declined to pursue the death penalty, despite the Supreme Court's holding that the State could pursue such course of action. State v. Cruz, 171 N.J. 419, 432-34 (2002).

Following the second jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) & (2); first-degree felony murder, N.J.S.A. 2C:11-3a(3); (3) first-degree armed robbery, N.J.S.A. 2C:15-1; (4) second-degree conspiracy to commit first-degree armed robbery, N.J.S.A. 2C:5-2; (5) third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and (6) fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate, N.J.S.A. 2C:39-5d. The trial judge imposed a life term with a thirty-year parole disqualifier on the murder conviction and a consecutive twenty-year term with a ten-year parole disqualifier on the armed robbery conviction. The judge merged all other counts.

This is a summary of the State's proofs. Santina Leonardi, a seventy-four-year old widow, owned a convenience store called "Sam's" in Woolwich Township. She lived above the store with her daughter and her granddaughter. The store provided check-cashing services to its patrons.

On December 11, 1995, Leonardi was found murdered in the store. Her body had multiple stab wounds and she had suffered blunt force trauma to the entire left side of her face and a defensive cut on the back of her hand. The murder weapon, a knife with an eight-inch blade, was left protruding from her chest. Her granddaughter found her lying on the convenience store's floor around 5:45 p.m. The office where Leonardi cashed checks was in disarray.

The Gloucester County Prosecutor's Investigator/Sergeant, Alex Illas, led the investigation. Eighteen days after the murder, Illas spoke with defendant, who had cashed checks at Sam's. These checks had been dishonored by the bank on the same date as the murder. Illas encountered defendant, by chance, outside another person's house. Illas asked defendant his name. Upon hearing it, Illas asked defendant if he had bounced some checks at Sam's. Illas then asked defendant if he would talk to him at the Carney's Point Police Station. Defendant agreed to go and drove himself there with Illas following him.

At the police station, Illas asked defendant if he had any information "that would aid . . . in this investigation." He also asked defendant if he would give a recorded statement and a copy of his fingerprints. Illas did not give defendant Miranda warnings at that time. Defendant consented to the recording of the conversation, during which they discussed: defendant's bounced checks; his prior dealings with Leonardi; his whereabouts on the date of her murder; his presence at Sam's on that date; and people who defendant saw around Sam's on that date. Defendant subsequently allowed Illas to fingerprint and photograph him.

Four days later, Illas went to defendant's home to ask to have his fingerprints taken again, and to consent to a search of his apartment. Defendant consented. After the search, defendant and Illas went back to the police station, where defendant consented to give his fingerprints. Once again, defendant drove his own car to the station.

Two weeks later, on January 18, 1995, Illas went back to defendant's apartment to ask him for an interview at the Woodstown State Police Barracks. Illas asked defendant to bring a pair of sneakers that he had seen during the consent search. This time, Illas drove defendant to the barracks. There, defendant was again given Miranda warnings. Defendant waived his rights and gave another recorded statement. Defendant was released and returned home.

Eventually, Illas's investigation led him to Jorge Pinto-Rivera. Pinto-Rivera told the police that defendant told him that two men were willing to pay defendant $5,000 to obtain "real estate papers" stored in a drawer in Sam's office. Pinto-Rivera agreed to wear a body wire and record conversations with defendant.

In a February 24, 1996 recorded conservation, defendant and Pinto-Rivera discussed: whether defendant threw away "the knives"; where defendant threw away "the clothes"; and what amount of money defendant was going to pay him. During a second conversation that same day, defendant and Pinto-Rivera discussed how defendant was going to get the money that he had agreed to pay him. Defendant said, "I'm going to put it there for you." Defendant then gave Pinto-Rivera a check for $500.

During a recorded conversation on February 26, 1996, Pinto-Rivera told defendant that the check had bounced. Defendant offered to give Pinto-Rivera cash. At Pinto-Rivera's prompting, defendant admitted that he killed Leonardi.

At that point, Illas wanted to arrest defendant, but his supervisors told him to see if defendant would come into the Prosecutor's Office voluntarily. On February 27, 1996, Illas approached defendant, who agreed to go to the Prosecutor's Office. Illas did not tell him that either a complaint or an arrest warrant had been issued or was going to be issued against him. Illas handcuffed defendant and placed him into the police vehicle. Before any questions, Illas accused defendant of murdering Leonardi and told him that this was the time to tell the truth. Illas testified that:

I believe I told [defendant] that we were here to get the truth on the murder of Santina Leonardi. I believe I used the words that, I know you killed her, there is some information that we have now that I know you killed her.

Illas read from his report:

[Defendant] was advised that new evidence had been gleaned that indicated that he was the one that murdered Santina Leonardi. That's me telling him that.

Then, Illas gave defendant Miranda warnings and asked defendant if he waived his rights. He agreed. Defendant was told to complete the top part of a waiver of rights form. Defendant asked what is the category of the case. He was told to write "homicide." Defendant wrote "homoside." Then defendant signed the form and the taped interview commenced.

Defendant confessed, admitting that he killed Leonardi and implicated Pinto-Rivera as a participant. According to defendant's taped statement, he said that the day before the homicide, he was met by a man named Antonio Rodriguez, who was armed with a gun. The man told him:

"I want you to go in there to Santina's and grab something and bring me some papers that are in the drawer, and I'm gonna give you till tomorrow morning. What's more, I'm gonna give you until tomorrow night I want you to bring me those papers by 6:00. I'm gonna wait for you right here at Heritage's. So I asked him, How do you want me to do that? She's gonna be there." He says, "I'm going to give it all to you now. Remember what I tell you look at what I have."

Then defendant described the incident. Pinto-Rivera went into the store first. He had already placed Leonardi in a chair and hit her. She screamed to "stop." Defendant went into the office and then came out. Defendant then told Pinto-Rivera, "that woman knows me." Then he said to Pinto-Rivera, "Well then go in and kill her." Defendant went back into the office and stabbed her. At the time, Leonardi was "on the floor in a pool of blood." Defendant described that when he attempted to pull out the knife, it broke. He left the handle in the body. He did not retrieve any papers or money and left.

Defendant and Pinto-Rivera were arrested and charged with the murder. Pinto-Rivera pled guilty. Defendant moved to suppress his confession. There was a hearing before Judge Martin L. Herman, who denied the motion and admitted the confession into evidence.

The February 27, 1996 Confession

On appeal, defendant contends:

UNDER THE NEW JERSEY SUPREME COURT'S HOLDING IN STATE V. A.G.D., 178 N.J. 56 (2003), CRUZ'S WAIVER OF HIS STATE-LAW RIGHT AGAINST SELF-INCRIMINATION ON FEBRUARY 27, 1996, WAS NOT KNOWING AND VOLUNTARY PER SE BECAUSE THE POLICE FAILED TO INFORM HIM THAT AN ARREST WARRANT HAD BEEN FILED OR ISSUED AGAINST HIM AND HE DID NOT OTHERWISE KNOW THAT FACT. AS A RESULT, CRUZ'S INCRIMINATING STATEMENTS FROM FEBRUARY 27, 1996[,] SHOULD BE SUPPRESSED AND HIS CONVICTIONS REVERSED. U.S. Const. amends. V; XIV; N.J. Const. art. I, 1.

It is well settled that "New Jersey's privilege against self-incrimination is so venerated and deeply rooted in this state's common law that it has been deemed unnecessary to include the privilege in our State Constitution." State v. O'Neill, 193 N.J. 148, 176 (2007) (citing State v. Reed, 133 N.J. 237, 250 (1993)). This privilege provides that "every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or forfeiture of his estate . . . ." N.J.S.A. 2A:84A-19; N.J.R.E. 503. Although it is not a part of our State Constitution, "[w]e have treated our state privilege as though it were of constitutional magnitude, finding that it offers broader protection than its Fifth Amendment federal counterpart." O'Neill, supra, 193 N.J. at 176-77 (citing See State v. Muhammad, 182 N.J. 551, 568 (2005)). Generally, "[i]n determining whether a suspect's confession is the product of free will, courts traditionally assess the totality of circumstances surrounding the arrest and interrogation . . . ." State v. Presha, 163 N.J. 304, 313 (2000). The State has the heavy burden to prove "that a defendant has waived his or her right against self-incrimination." Reed, supra, 133 N.J. at 251 (citation omitted).

In A.G.D., police brought the defendant to the local prosecutor's office to question him regarding "allegations of sexual abuse that had been asserted against him, but the detective did not specify the charges." A.G.D., supra, 178 N.J. at 59. The police gave defendant Miranda warnings prior to questioning him, but did not alert him to the fact that an arrest warrant had already been issued against him. Ibid. Defendant confessed. Id. at 60. The trial court denied a motion to suppress the confession. We reversed and remanded for a new suppression hearing, holding that the conviction would stand unless the confession was suppressed. The trial court denied the motion to suppress. On appeal, the Supreme Court held:

The government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights. . . . [A] criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of his rights, regardless of other factors that might support his confession's admission.

[Id. at 68.]

In O'Neill, the Court described its holdings in A.G.D. as establishing a "clear standard[]"; namely, "that police officers conducting a custodial interrogation cannot withhold essential information necessary for the exercise of the privilege." O'Neill, supra, 193 N.J. at 179. "The two-step, 'question-first, warn-later' interrogation is a technique devised to undermine both the efficacy of Miranda and our state law privilege." Id. at 180.

In State v. Henderson, 397 N.J. Super. 398 (App. Div.), certif. granted, 195 N.J. 521 (2008), defendant argued that the police did not "specifically inform[]" him about the arrest warrant that had been issued against him for murder before being interrogated. We differentiated Henderson's case from A.G.D., stating:

[T]he police advised defendant that they had a warrant for his arrest and told him that he was being taken to the homicide unit. Although the police did not tell defendant that he had been arrested for the murder of [the victim], defendant responded that he knew "what it's all about." Accordingly, unlike what occurred in A.G.D., defendant was not disadvantaged. He knew he was being arrested and, thus, his waiver of his Miranda rights was fully informed. We decline the invitation to hold that the principles announced in A.G.D. extend to also informing an accused of the basis for the arrest warrant, particularly, as here, when defendant well-understood why he was arrested.

[Id. at 404.]

This case is similar to Henderson. Although defendant was not expressly told about the arrest warrant, Illas did tell him that he was a suspect in the Leonardi murder and that there was evidence implicating him in the crime. In our view, Illas was not required to do more. We conclude that defendant made a knowing waiver of his right to remain silent.

Retroactive or Prospective Application of A.G.D.

Nonetheless, assuming that the facts of this case place it within A.G.D.'s parameters, we further conclude that A.G.D. should not be applied retroactively.

"The threshold question in any retroactivity decision is whether a new rule of law has actually been announced. As the very term implies, retroactivity can arise only where there has been a departure from existing law." State v. Burstein, 85 N.J. 394, 403 (1981). A rule is new if it "breaks new ground," "was not dictated by precedent existing at the time the defendant's conviction became final," State v. Natale, 184 N.J. 458, 492-93 (2005) (Natale II) (citations and internal quotes omitted), or where a decision is "a sudden and generally unanticipated repudiation of a longstanding practice." State v. Afanador, 151 N.J. 41, 58 (1997).

If the rule is new, three factors are considered to determine how the rule should be applied: "(1) purely prospectively to all cases; (2) prospectively to all cases but the case in which the rule is announced; or (3) retroactively to cases in the pipeline." Natale, supra, 184 N.J. at 494 (citing State v. Knight, 145 N.J. 223, 249 (1996)). A fourth option is to "give the new rule complete retroactive effect, applying it to all cases, including those in which final judgments have been entered and all other avenues of appeal have been exhausted." Knight, supra, 145 N.J. at 249 (citing Burstein, supra, 85 N.J. at 403). However, where "a ruling does not involve a 'departure from existing law,' the retroactivity question never arises" and, as a result, the court's "power to limit the retroactive effect of a decision is not implicated." Ibid. Essentially, where no "new rule" is announced, it applies to all cases because, implicitly, the rule existed at the time of the situation at issue.

This "new rule" framework is based on "the concept, prevalent at common law, that the duty of courts was not to pronounce new law but rather to 'maintain and expound' extant judicial rulings. A court could 'discover' what the law had always been, but it could not create new law." Id. at 249-50 (citations omitted). At the present time, courts recognize that "some decisions represent a break from prior jurisprudence" and, for that reason, "to apply such new rules retroactively could inflict unjustified burdens on the courts and law enforcement personnel." Id. at 250 (citing Linkletter v. Walker, 381 U.S. 618, 623-24, 85 S. Ct. 1731, 1734-35, 14 L. Ed. 2d 601, 605 (1965)).

Where a new rule has been announced, courts are instructed to consider three factors to determine the type of retroactive effect it should have: "(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice." Id. at 251 (quoting State v. Nash, 64 N.J. 464, 471 (1974); accord State v. Gillmore, 103 N.J. 508, 544 (1986); Burstein, supra, 85 N.J. at 406)). No "constitutional mandate" compels this court to take one of the approaches over another. Nash, supra, 64 N.J. at 470. The court should also consider "what is just and consonant with public policy in the particular situation presented." Id. at 469.

Consideration of the first factor is "pivotal" because it alone may assist a court in determining the type of retroactivity that should be applied. Knight, supra, 145 N.J. at 251 (quoting Burstein, supra, 85 N.J. at 406). The Supreme Court explained in Knight:

For example, if the newly announced rule is an exclusionary rule intended solely to discourage police misconduct, then the rule's purpose would not be served by applying the rule to conduct occurring before the rule was announced. For that reason, exclusionary rules are rarely given retroactive effect. On the other hand, if the old rule was altered because it substantially impaired the reliability of the truth-finding process, the interest in obtaining accurate verdicts may suggest that the new rule be given complete retroactive effect.

The second and third factors come to the forefront of the retroactivity analysis when the inquiry into the purpose of the new rule does not, by itself, reveal whether retroactive application of the new rule would be appropriate. The second factor inquires whether law enforcement agents justifiably relied on the old rule in performing their professional responsibilities. "The reasoning underlying this inquiry is that state agents should not be penalized for complying in good faith with 'prevailing constitutional norms'" when carrying out their duties. In instances where prior judicial decisions gave state officials reason to question the continued validity of the old rule, the significance of the reliance factor correspondingly decreases.

The third factor in the retroactivity analysis, the effect a retroactive application would have on the administration of justice, recognizes that courts must not impose unjustified burdens on our criminal justice system. Thus, we generally have avoided applying new rules retroactively when such an application would undermine the validity of large numbers of convictions. We have noted our concern about overwhelming courts with retrials, and our awareness of the difficulty in re-prosecuting cases in which the offense took place years in the past.

[Knight, supra, 145 N.J. at 251-52 (citations omitted).]

In Reed, supra, 133 N.J. 261-62, the Supreme Court announced a "new rule," namely that a person in police custody should be told if there is an attorney "present or available" and the failure to do so is a violation of the person's right against self-incrimination. The Supreme Court then declared the Reed holding a "new rule" for retroactivity purposes because of its use of language, such as "we enunciate," "we announce today," and "future judicial inquiry." Id. at 265-67. Although the Court applied the new rule to the Reed defendant, the Court later determined that the new rule should not be applied retroactively to any other case where the confession occurred prior to the date that Reed was decided. State v. Abronski, 145 N.J. 265, 267 (1996).

Such a decision aligns with the second retroactivity option set forth in Knight, where a court will "apply the new rule in future cases and in the case in which the rule is announced, but not in any other litigation that is pending or has reached final judgment at the time the new rule is set forth." Knight, supra, 145 N.J. at 249 (citing Burstein, supra, 85 N.J. at 403).

In Abronski the Court reached its decision to decline "pipeline retroactivity" or "full retroactivity" of the Reed rule by considering the Nash factors. It also impliedly ruled out the "purely prospective" option because the defendant in Reed received the benefit of the new rule. The Court stated:

Our decision not to afford Reed such retrospective effect stems from our analysis of the second and third Nash factors in this case. . . . [T]he context in which the Reed rule is implicated frequently arises. As a result, applying Reed retroactively would undermine the validity of a relatively large number of convictions and consequently burden the criminal justice system with numerous retrials. Moreover, in cases similar to this, state law enforcement agents reasonably could rely on pre-Reed law, in declining to interrupt the interrogation of a suspect to inform the suspect that an attorney was seeking to contact him. . . . "[W]hen the police interrogated Abronski, Moran represented the applicable law and the police justifiably relied on and followed it."

[Abronski, supra, 145 N.J. at 267-68 (citations omitted).]

Here, although it does not appear that a complete argument for or against retroactivity was made at the pre-trial hearings, Judge Herman made the following finding:

While in the main, one can conclude, and I do conclude, that there is something inherently disingenuous to police authority withholding the information that Illas had, that his silence at that time did not, does not conform with usual police practices, I find there is nothing specific in the law, that is, no black letter law or rule, that Illas or his superiors could have, should have known, that required, that compelled them to make such a disclosure.

We conclude that A.G.D. announced a "new rule." Therefore, this "new rule" should apply prospectively only, that is, to confessions that occurred after the date that A.G.D. was decided October 9, 2003. Based on the Nash factors and based on public policy considerations, we also conclude that total or pipeline retroactivity is not warranted. First, the purpose of the rule in A.G.D. is to extend the cluster of rights that are ancillary to the Miranda rights, all of which are exclusionary in nature. Because exclusionary rules operate to deter the inappropriate action of law enforcement, it does not make sense to apply them to cases where police action has already occurred. Second, as to the degree of reliance on the A.G.D. rule, there was no previous mandate that such a warning be delivered. As the trial judge stated, there was no such rule at the time, and the police did not believe, nor was there reason for them to believe, that they were compromising defendant's rights when they failed to tell him that they were seeking an arrest warrant for him.

Use of Police Agent

Defendant also contends:

THE CONTINUED USE BY THE POLICE OF A THIRD-PARTY AGENT TO OBTAIN INCRIMINATING STATEMENTS FROM A SUSPECT AFTER IT WAS CLEAR THAT THE AGENT WAS COMMITTING CRIMES AGAINST THE SUSPECT VIOLATED DUE PROCESS AND RENDERS THE SUSPECT'S STATEMENTS INVOLUNTARY PER SE. THUS, CRUZ'S STATEMENTS FROM FEBRUARY 24 AND 26, 1996, SHOULD BE SUPPRESSED AND HIS CONVICTIONS REVERSED. U.S. Const. amends. V; XIV; N.J. Const. art. I, 1.

Defendant argues that the actions of Pinto-Rivera, who was acting as a government agent to procure defendant's recorded statements related to the murder, constitute extortion. Therefore, those statements should have been suppressed. We are not persuaded.

Any statements made by the accused, whether to the police or to a private person, must "be voluntary and not the product of coercion." State v. Kelly, 61 N.J. 283, 293-94 (1972) (citation omitted). A court should consider the totality of the circumstances surrounding the voluntariness of a confession. Ariz. v. Fulminante, 499 U.S. 279, 285-86, 111 S. Ct. 1246, 1252, 113 L. Ed. 2d 302, 315 (1991). The central inquiry is "whether the behavior of the State's law enforcement officials was such as to overbear [the suspect's] will to resist and bring about confessions not freely self-determined a question to be answered with complete disregard of whether or not [the suspect] in fact spoke the truth." Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741, 5 L. Ed. 2d 760, 768 (1961).

"The essential ingredients of a 'police-dominated atmosphere' and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be [a peer]. Coercion is determined from the perspective of the suspect." Ill. v. Perkins, 496 U.S. 292, 296, 110 S. Ct. 2394, 2397, 110 L. Ed. 2d 243, 251 (1990) (citing R.I. v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 308 (1980); Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984)). When a suspect who has no reason to believe that the person to whom he is speaking has "official power over him," "mutually reinforcing pressures that . . . weaken the suspect's will . . . do not exist." Ill. v. Perkins, 496 U.S. 292, 297, 110 S. Ct. 2394, 2397, 110 L. Ed. 2d 243, 251 (1990). However, "[t]his is not to say that a secret government informer is to the slightest degree more free from all relevant constitutional restrictions than is any other government agent." Hoffa v. United States, 385 U.S. 293, 311, 87 S. Ct. 408, 418, 17 L. Ed. 2d 374, 387 (1966) (citing See Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964)).

Here, the judge made a factual determination that the recorded conversation did not indicate that Pinto-Rivera was engaging in extortion. We should defer to these factual findings because the record supports such a finding.

Defendant argues that the judge did not listen to the tapes, and therefore, it was unfair to make such a finding. However, the judge does not speak Spanish. Therefore, listening to the tape would not have helped reach a conclusion on whether Pinto-Rivera was extorting money from defendant.

December 29, 1995 Statement

Defendant also contends:

THE FAILURE OF POLICE TO ADMINISTER MIRANDA WARNINGS BEFORE THE DECEMBER 29, 1995, CUSTODIAL INTERROGATION AT THE POLICE STATION REQUIRES THAT CRUZ'S STATEMENTS FROM THAT DAY BE SUPPRESSED AND HIS CONVICTIONS REVERSED. U.S. Const. amends. V; XIV; N.J. Const. art. I, 1.

We disagree.

Defendant argues that his statements that were made on December 29, 1995, should be suppressed because he was not given his Miranda warnings. However, we note that defendant was not in custody at the time that he made statements to police on December 29, 1995. Therefore, Miranda warnings were not required. Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293, 84 L. Ed. 2d 222, 232 (1985); see also State v. O'Neal, 190 N.J. 601, 615-16 (2007). Moreover, defendant did not make any inculpatory statement on that date. He returned home after speaking with the police.

We reject defendant's argument and affirm his conviction because the judge properly found that defendant's statements on December 29, 1995, were in a non-custodial setting, and therefore, the Miranda warnings were not required.

The Sentence

Defendant also contends:

THE JUDGE FAILED TO APPLY THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 208, 232 (1985) IN SENTENCING CRUZ TO CONSECUTIVE SENTENCES ON THE MURDER AND ROBBERY CONVICTIONS. U.S. CONST AMEND. VI, XIV, N.J. CONST. ART. I, PAR. 1, 9 AND 10.

We conclude sua sponte that a remand is required on the armed robbery sentence. Defendant argues that he should have been sentenced to concurrent terms of imprisonment under State v. Yarbough for murder and robbery convictions because they "were committed at the same time and place, and involved the same victim."

Where a court imposes consecutive sentences, it must clearly state its reasons for doing so. State v. Miller, 108 N.J. 112, 122 (1987). In Yarbough, the New Jersey Supreme Court set forth six factors for a sentencing courts' consideration regarding whether to impose consecutive or concurrent sentences. Yarbough, supra, 100 N.J. at 643-44.

Here, the judge did not expressly refer to Yarbough nor did he undertake a sufficient analysis explaining why consecutive sentences were warranted in this particular case. It is not enough to state which of the factors apply. The judge must say why, in particular, the factors being considered apply and why, as a result, these factors warrant consecutive sentences. Moreover, pursuant to Natale, 184 N.J. 458 (2005) (Natale II), the conviction for armed robbery, which was set above the midpoint of the range, must be reconsidered.

 
Accordingly, the convictions are affirmed, the sentence for armed robbery is vacated and remanded for re-sentencing pursuant to Natale, and for a determination of whether the terms imposed should run concurrent or consecutively. In all other respects, the judgment is affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

We note that A.G.D., on which defendant relies, was decided eight months after the convictions under review.

We recognize that this section of the opinion is non-precedential dictum, but include it as an alternative holding on the A.G.D. issue. State v. Rodriguez, 399 N.J. Super. 192 (2008).

100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

The felony murder and murder were merged.

(continued)

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A-4078-02T4

September 5, 2008