STATE OF NEW JERSEY v. WINSTON DURANT

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6332-06T46332-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WINSTON DURANT a/k/a JUNIOR

DURANT a/k/a WILSON DURANT

a/k/a WINSTON J. DURANT a/k/a

WINSTON DURANT JR.,

Defendant-Appellant.

 

Submitted April 21, 2009 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 05-04-0858-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Winston Durant, and four codefendants were indicted in Bergen County, charged with multiple robbery, assault and weapons offenses. Following a trial in April 2007, a jury convicted defendant of the following crimes, which occurred on December 30 and 31, 2004:

Two counts of third-degree theft, of an Audi and a Nissan automobile, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:20-3 (counts fifteen and sixteen); second-degree robbery of an E-Z Shop convenience store in Garfield, as a lesser-included offense of first-degree armed robbery, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1 (count seventeen); first-degree armed robbery of a catering truck in Teterboro, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1 (count twenty-four); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4a (count twenty-five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5c(2) (count twenty-six); second-degree unlawful possession of a firearm, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4a (count twenty-seven); third-degree unlawful possession of a weapon, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5b (count twenty-eight); third-degree robbery of a BP gas station in Hackensack, as a lesser-included offense of second-degree armed robbery, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1 (count twenty-nine); second-degree unlawful possession of a firearm, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4a (count thirty); third-degree unlawful possession of a weapon, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5c(2) (count thirty-one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4a (count thirty-two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5b (count thirty-three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count thirty-five). The jury acquitted defendant of counts eighteen to twenty-two, various assault and weapons offenses.

After the jury returned its initial verdict, the court reinstructed the jury on two remaining charges, counts forty-two and forty-three, second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. The jury returned a guilty verdict on those offenses.

On the date of defendant's sentencing, the court denied his motion for judgment notwithstanding the verdict and for a new trial. The court granted the State's motion to impose a discretionary extended term on the armed robbery conviction, and merged counts twenty-five and twenty-seven with count twenty-four, count thirty-one with count twenty-six, and count thirty-three with count twenty-eight.

The court then imposed the following prison terms: on count fifteen, a four-year term; on count sixteen, a four-year term consecutive to that imposed on count fifteen; on count seventeen, a ten-year term, consecutive to the terms imposed on counts fifteen and sixteen, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA); on count twenty-four, a thirty-year term consecutive to the terms imposed on counts fifteen through seventeen, with an eighty-five percent period of parole ineligibility pursuant to NERA; on counts twenty-six and twenty-eight, four-year concurrent terms; on count twenty-nine, a ten-year concurrent term subject to an eighty-five percent period of parole ineligibility; on counts thirty and thirty-two, ten-year concurrent terms; on count thirty-five, a one-year concurrent term; on count forty-two, a ten-year term with a five-year period of parole ineligibility, consecutive to the terms imposed on counts fifteen through seventeen and count twenty-four; and, on count forty-three, a ten-year term, with a five-year period of parole ineligibility, consecutive to the terms imposed on counts fifteen through seventeen, twenty-four and forty-two.

On appeal, defendant raises the following legal arguments:

POINT I - THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE DEFENDANT'S INCULPATORY ORAL AND WRITTEN STATEMENTS BECAUSE THE DEFENDANT WAS ILLEGALLY ARRESTED AND BECAUSE THERE IS AN UNBROKEN CAUSAL CONNECTION BETWEEN THE ILLEGAL ARREST AND THE INCULPATORY STATEMENTS.

POINT II - THE DEFENDANT'S ORAL AND WRITTEN INCULPATORY STATEMENTS MADE AT THE HACKENSACK POLICE DEPARTMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE RECORD LACKED AN ADEQUATE EVIDENTIAL FOUNDATION FOR THE MOTION COURT TO HAVE FOUND THAT THE DEFENDANT WAS SPECIFICALLY GIVEN THE REQUIRED INFORMATION UNDER MIRANDA [v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)].

POINT III - THE TRIAL COURT'S STATEMENT TO THE JURY THAT "ONE HALF" OF THE CASE IS OVER, MADE AFTER THE STATE RESTED, PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).

POINT IV - THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY AN IMPARTIAL JURY (NOT RAISED BELOW).

POINT V - THE DEFENDANT'S CONVICTIONS FOR BEING A PERSON PROHIBITED FROM POSSESSING A WEAPON ON COUNTS FORTY-TWO AND FORTY-THREE SHOULD BE REVERSED BECAUSE ACCOMPLICE LIABILITY DOES NOT APPLY TO THIS TYPE OF POSSESSORY WEAPONS OFFENSE (NOT RAISED BELOW).

POINT VI - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.

POINT VII - IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 68 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.

Having considered these arguments in light of the evidence and prevailing law, we affirm defendant's conviction, but vacate his sentence and remand for resentencing.

I. The Evidence

A.

The E-Z Shop was a convenience store, owned by Muzafar Ali, located on Passaic Street in Garfield. At approximately 11:20 p.m. on December 30, 2004, Sanela Malicevic and her husband were walking past the store, when she saw five men standing together behind the store. One man wore "a black down jacket, down to the knees;" he was "black" and "taller" and "huskier" than the others. The other men wore hooded sweatshirts. Parked next to the men was a champagne-colored car that looked like "maybe an older model of a Nissan."

Malicevic heard one of the men say, "Come on. Let's go." She saw the man with the black down jacket pull the "gray, red and blue" hood of his sweatshirt over his head. Another man pulled a mask over his face. After she dialed 9-1-1 on her cell phone, she heard Ali yelling, "Help me" and, "Please don't hurt me," followed by a gun shot. Malicevic saw Ali run from the store and heard three more gun shots.

Ali testified that shortly after 11:00 p.m., while in the back room of his store, he heard the doorbell. When he turned, three men wearing masks approached him. He did not see their faces; one man was taller than six feet; another wore a long, gray coat; and one had a silver handgun. After they hit him in the head with a gun, he ran out of the store. He heard gun shots, and bullets "just missed" him. He hid nearby and called 9-1-1 on his cell phone.

Garfield Police Officer John Keating responded to the "chaotic" scene, where he discovered Ali covered in blood. Ali spoke little English, but he conveyed to Keating that three men had robbed him. One of the men was black, one was white, and the other was of an unknown race. Ali was in and out of consciousness. Soon after speaking with Keating, he was taken to the hospital. At trial, Ali did not recall giving police a description of the suspects on the night of the incident.

Detective Sergeant Garrett Schlicher of the Bergen County Sheriff's Department processed the evidence from the crime scene. He obtained fingerprints that were usable for comparisons, but none matched defendant's fingerprints.

At about 4:00 a.m. the next morning, Garfield Police Sergeant Edward Dolack interviewed Ali in the hospital emergency room, where he again described the robbers. Ali said one of the men had a "large silver gun." They stole $200, a cell phone, cigarettes, and the plastic drawer in the cash register that held the money.

B.

Seventy-one-year-old John Toronto owned and operated a food truck, which on December 31, 2004, at approximately 4:00 a.m., was parked in the parking lot of LaValle's Food. Toronto was standing outside of the truck when a car entered the lot and parked about ten feet behind the truck. Three "black" men wearing ski masks jumped out of the car. One of the men wore glasses under his ski mask. He was about six feet one to two inches tall. Two of the men had guns, a revolver and a "semi-automatic." In court, Toronto identified a silver revolver that looked like the weapon he saw that night.

The men "pinned" Toronto to the side of the truck and pointed their guns at him. The man with the revolver held it against Toronto's ribs. One of the men said: "Give me the money. We're going to blow you away." They took $150, Toronto's cell phone, cigarettes, and a coin dispenser. The men pushed Toronto into his truck and drove off. Toronto waited for someone with a cell phone to arrive and called the police. That night, he told the police that the robbers drove a tan, four-door sedan, "maybe a Chevy," and all three men wore dark clothing.

LaValle's Food had a video surveillance camera that recorded the robbery. It showed three men jumping out of a car, holding Toronto against the side of the truck, then pushing him back into the truck and driving away. The video provided little detail on the men's appearance, other than to show that one of them wore a long white coat. No fingerprints matching defendant's were found at the crime scene.

C.

Marasli Baytekin worked as a gas station attendant at a BP gas station on Route 17 in Hackensack. On December 31, 2004, between 4:20 a.m. and 4:30 a.m., Baytekin was inside the attendant's booth with the door locked, talking on the telephone. He heard someone twice try to push the door open. One of the men was "black." When the men ran off, Baytekin saw another person running in the same direction. Baytekin did not see a weapon. Baytekin called the police.

At about 4:14 a.m., a police broadcast system, SPEN, broadcast a robbery in progress at a BP gas station on Route 17. While Hackensack Police Officer James Prise was on patrol in a marked vehicle, he heard the broadcast. As he turned onto Summit Avenue South, he saw a vehicle that was similar to the description of the car that he had heard over SPEN. The vehicle was heading northbound; inside were "three males, possibly wearing winter type wool hats."

As Prise turned to follow, the vehicle began traveling north in the southbound lane. Prise activated his lights and siren and followed the car onto the Route 17 north ramp, where the car was traveling sixty to seventy miles per hour. The car left the ramp and traveled into a Home Depot parking lot. Prise reported the license plate number to headquarters. As Prise followed the Nissan north through the parking lot, it crossed over Essex Street "to the rear of Jack's Car Wash in Maywood," nearly colliding with Officer Niles Malvasia's patrol car.

During the car chase, Prise saw what looked like a "stainless steel revolver type pistol" being thrown from the car. The weapon was later identified as a .357 Magnum caliber Taurus revolver. A bullet recovered from the scene of the Garfield robbery came from that gun.

The Nissan stopped and the occupants got out. The police officers stopped their vehicles and saw four men, all wearing dark clothing, run from the car. One of the men was Kenyatta Clarke; Prise and Malvasia knew him prior to this incident. Clarke was "six three, six four maybe," and weighed about two hundred and fifty pounds.

Prise chased and captured Clarke, who was wearing "[a] jacket, gloves, [and a] hat." In court, Prise and Malvasia identified a "wool hat and a head rag" that Clarke wore that night. The hat was a red ski mask with eye holes. When he was arrested, Clarke had "a large amount of cash" in his pocket, which Malvasia estimated to be between $150 and $200. Clarke did not have a weapon.

Prise continued to chase another man, but did not catch him. While he was running, Prise found a black military-style or BDU-style jacket on the ground. On Beech Street, near Jack's Car Wash, the police found a hooded sweatshirt, gray on the outside and white inside.

Inside the Nissan, Prise and Malvasia saw a coin dispenser, a handgun on the driver's side floor, cartons of cigarettes, and bandannas. The handgun was a loaded ".22 caliber Long Rifle caliber Smith & Wesson semi-automatic pistol." The Nissan appeared to have been stolen because the lock on the steering column had been "punched out," allowing the car to start with a screwdriver or a knife instead of a key.

The parties stipulated that the .357 Magnum caliber Taurus revolver from the Garfield robbery, and the .22 caliber Long Rifle Smith & Wesson semi-automatic pistol, both met the statutory definition of a firearm and both were operable.

D.

In late December 2004, Jackie Kero reported that her 1995 Audi had been stolen from a repair shop. Kero described the color as "a funny grayish but it looked purplish." Detective Everett Garnto believed that the Audi was the vehicle used in the E-Z Shop armed robbery. The Audi was recovered in Ridgefield Park. The General Manager of JTB U.S.A., located in Hasbrouck Heights, testified that in late December 2004, a four-door silver 2000 Nissan had been stolen from JTB's lot.

II. Defendant's Statements to the Police

On December 31, 2004, Hackensack detectives Anthony Ferraioli and Al Guttierez, and Detective Sergeant Scott Seibel, were patrolling the streets in an unmarked vehicle during the 9:00 a.m. to 5:00 p.m. shift. When they reported to work that morning they were instructed that if they saw defendant, they were to ask him if he would accompany them to police headquarters for questioning. They were not told to arrest him.

While on patrol between 4:30 p.m. and 5:00 p.m., Ferraioli saw defendant standing in the front of an apartment building. All three officers got out of their vehicle. As they walked toward defendant, he entered the front door of the building, which opened to a foyer and staircase. The staircase led to the second-floor apartment where he lived with his mother, sister, and his sister's children. Ferraioli followed him part way through the front door, into the foyer.

Ferraioli told defendant that the police wanted him for questioning. When he asked why, Ferraioli said that he did not know. Defendant agreed to accompany the officers to the police station for questioning. He was not handcuffed or placed under arrest, and got into the back seat of the police vehicle with Guttierez.

At police headquarters, Detective Philip Carroll interviewed defendant. Detective Kevin O'Boyle advised defendant of his Miranda rights with the aid of a Miranda form. The time on the form is 5:40 p.m. Next to each Miranda right on the form, defendant wrote "yes" and his initials, signifying that he understood each right. At the end of the form was a statement saying that defendant waived his rights. Defendant, Carroll and O'Boyle signed the form. Defendant was cooperative, never asked for clarification or for an attorney, and he was not handcuffed or shackled.

Carroll questioned him about the Hackensack gas station robbery. Defendant said he was with "Kenny and Dee," Kenyatta Clarke and Daniel Brown, during that robbery. Defendant said:

We were driving around and needed some money so we went to the gas station. We parked in a parking lot next to the gas station by the cable trucks. We went in by the back of the station by the weeds. Kenny and Dee went up to the booth with their guns in their hands. I stayed in the back of the station. The door on the booth was locked and there was a man inside. They must of got scared and ran. We all got back into the car and drove off. We went out of the parking lot by Lodi, we went on to Summit Avenue. As we were driving there was a cop that went by. He passed us and made a U-turn . . . . We got back on the Route 17 [sic] went into Home Depot and across Essex Street. The cop was behind us. We went into this parking lot stopped the car[,] jumped out and ran.

Defendant admitted that he and his friends went to the gas station to rob it and that Brown and Clarke had weapons. Brown had his black ".22 cal" and Clarke had a chrome revolver. Defendant wore jeans, a black jacket, black gloves and a black hat. They used a brown Nissan that they had stolen from a "building in Hasbrouck Heights."

Defendant said he did not commit any other crimes in Hackensack that night, but he did commit crimes in Little Ferry and Garfield. Carroll asked him what he had done, and defendant answered: "In Little Ferry there was an old man with a lunch truck and in Garfield there was a store."

Carroll typed and printed the questions and answers. Defendant reviewed them and signed the statement. The start and end times on the statement were 5:55 p.m. and 8:35 p.m., respectively. Carroll testified that the end time was incorrect; taking the statement took only thirty to forty-five minutes.

Little Ferry Police Department Lieutenant Frank Novak was the next officer to question defendant. Before asking defendant questions, Novak informed him of his Miranda rights with the aid of a Miranda form. Novak read each right to defendant, and Novak wrote the word "yes" after each right because defendant told him that defendant understood each right. Defendant and Novak signed the form. Defendant was not handcuffed or shackled, and he was "very calm, very quiet," and cooperative.

Defendant's statement to Novak lasted fifteen to twenty-five minutes. Novak did not record it because he did not have a tape recorder with him. He summarized the contents of the statement in his police report. According to that report, defendant said that he, Clarke and Brown parked their car near a food truck and Clarke and Brown took their guns and robbed an old man in a lunch truck while defendant waited in the car. Brown and Clarke stole about $160, a change dispenser and cartons of cigarettes.

Garnto and Garfield Detective Sergeant Roselli were the last officers to interview defendant at the Hackensack police department. Garnto did not recall if defendant was handcuffed during the interview. He advised defendant of his Miranda rights. Next to each right, defendant wrote "yes" and initialed it. Defendant appeared to understand the rights, and he did not request clarification or an attorney.

Garnto asked defendant about the E-Z Shop armed robbery, and defendant answered:

Well me and my three friends Kenyatta Clarke, Jermaine Sibdhannie a.k.a. DICE and Daniel Brown a.k.a. "D" met at Anderson Street in Hackensack then walked to Hasbrouck Heights, New Jersey when "D" stole a Nissan car tan in color, four door from [the] parking lot of an office building by a highway.

QUESTION: Where [did] you go after the vehicle was taken?

ANSWER: We went somewhere on Farnham Avenue in Garfield to look for D's cousin.

They did not find D's cousin. After that, Brown

wanted to get another car, so we went to a body shop down the street from the convenience shop and "D" and Kenyatta stole the Audi that was parked in a driveway by the body shop. I believe the Audi was burgundy in color and a four-door car. Then they came back to where Germain and me were parked on Farnham Avenue. At this time we drove to another location to look for "L" [D's cousin], we couldn't find him. Then "D" got into the driver's seat of the Nissan I was in and Germain got into the Audi with Kenyatta. Then Daniel Brown a.k.a. "D" backed into the driveway in back of the convenience shop and we all got out of the cars then put [masks] on our faces then went into the store.

Brown and Clarke walked into the store first, and defendant and Sibdhannie followed them. Defendant explained what happened inside the store:

When I walked in that's when I saw Daniel Brown a.k.a. "D" and Kenyatta in the back room where a bedroom was and . . . Brown was beating the store clerk over his head with a black handgun. Then Germain ran over to the register and I followed and I saw the man bleeding from his head. The store clerk then ran out of the back room screaming in pain. At this time me and . . . Brown . . . went into the back room where the bedroom was to go out the back door, but we couldn't find the door. [Brown] and me then walked to the front door and left the store and got into the Nissan and drove off down McArthur Avenue then made a right on to Harrison Avenue toward Route 46.

As they drove off, Brown told defendant that Clarke had "bust off meaning shoot some rounds from his handgun."

Brown asked defendant to call Clarke on his cell phone, and defendant did. The four of them then met at Sibdhannie's house and divided the money, each getting $40. Brown asked Clarke if he had fired his gun, and Clarke said, "yes I did because he [Clarke] didn't want to leave no witnesses." Defendant said that Clarke fired three shots from his chrome revolver.

In addition to the money, defendant said that they stole cartons of cigarettes from the store, "mostly Marlboro lights, one carton of Camels and some packs of Marlboro red packs." During the robbery, defendant wore a "black T-shirt, light blue jeans, black sneakers, black wool gloves, black wool hat and a black flight jacket and a black bandanna covering [his] face." The other three men wore the following:

Clarke was wearing black jeans, red wool hat with holes punched out by the eyes and a hole punched out on the top, black sneakers, black wool gloves and a black flight jacket. . . . Sibdhannie was wearing blue jeans, black sneakers, and red and white baseball cap, with blue wool gloves and a black T-shirt and a red bandanna covering his face. . . . Brown was wearing black jeans, black wool gloves, black sneakers, black jacket and a black wool hat with a black scarf covering his face.

When Garnto finished questioning defendant, he asked him if he had anything to add. Defendant said:

I had nothing to do with the beating of the man and never put my hands on any gun. I had nothing to do with the shooting, and if I knew that any of this was going to happen I wouldn't have ever been there. I just wanted to go for a ride, no robberies or shooting.

Defendant's statement concluded at 11:25 p.m. Garnto printed it, defendant reviewed it, and both signed it.

On January 1, 2005, the police went to Chastity Connor's apartment to arrest Daniel Brown. Inside Connor's apartment the police found a black winter hat, a bag, a black jacket, and a pair of BDU military-style pants that the police believed matched the BDU jacket found near Jack's Car Wash.

III. The Suppression Motion

Defendant claims that he was unlawfully arrested before giving his statements to the police; the State asserts that defendant was not arrested before giving his statements. Defendant also claims he was not given his Miranda warnings prior to giving his statements; the State refutes that claim. At the suppression hearing, the State offered the testimony of Detectives Anthony Ferraioli, Philip Carroll, Peter Schwartz, and Lieutenant Frank Novak. The State named Garnto as a witness, but he was unavailable to attend the hearing. The court agreed to hear from him at a later date.

The hearing record shows that on December 31, 2004, the police wanted to question defendant about the Hackensack robbery because defendant was a friend of Clarke. The police had no evidence linking defendant to any of the robberies and had no intention of arresting him.

At the beginning of their shift on December 31, 2004, Ferraioli, Guttierez and Seibel, and all other officers on duty, were instructed to watch for defendant as he was wanted for questioning. The three officers were given no information about the case. Because they knew defendant, they were told that if they saw him, to ask him to accompany them to the police station for questioning. The officers were not told to arrest defendant or that a warrant had been issued for his arrest.

Near the end of their shift, Ferraioli, Seibel and Guttierez saw defendant standing in front of a multi-family house on Central Avenue in Hackensack. When defendant opened the door to the house and walked into the foyer, they followed him inside. Defendant walked up a flight of stairs that led to a second-floor apartment. Ferraioli followed defendant, Guttierez followed Ferraioli, and Seibel remained at the bottom of the stairs. As defendant opened the apartment door, Ferraioli asked him if he would come to the police station to answer questions about a case. Ferraioli "may have" stepped into the apartment while he spoke to defendant. Defendant asked what they wanted to question him about, and Ferraioli replied that he did not know. In a "very calm" tone, defendant agreed to go to the police station to answer questions.

Ferraioli, Guttierez and Seibel escorted defendant to the police car, and the four of them got inside. Defendant sat next to Guttierez in the back of the car. Defendant was not restrained, handcuffed, advised that he was under arrest, or given his Miranda rights; nor was he told that he was free to refuse to go to the station.

Defendant arrived at the police station at about 5:15 p.m. Carroll told him why he was there and O'Boyle advised him of his Miranda rights. O'Boyle gave defendant a Miranda form and read aloud each right. Defendant signed and initialed the form. Carroll signed as a witness. The time on the form was 5:55 p.m. During the interview, defendant was not handcuffed, shackled, or told that he was under arrest.

Defendant gave a four-page statement implicating himself in the Hackensack robbery. The time that appeared on the statement was 8:35 p.m., but Carroll testified that that time was incorrect. He and O'Boyle took the statement right after O'Boyle advised defendant of his Miranda rights. The statement was a "masked statement," or one typed over a template, and Carroll forgot to change the time on it. While defendant was with Carroll and O'Boyle, he was not deprived of food, drinks or a bathroom, and his overall demeanor was "fine."

The Hackensack police had notified Novak that Clarke was in custody and he may have been involved in the Teterboro robbery. Novak traveled to the Hackensack police station and spoke with Clarke, and then with defendant.

When Novak met with defendant, he advised him of his Miranda rights. The time on the Miranda form was 6:30 p.m. Defendant signed the form after Novak told him his rights. Then he told Novak that he and some friends had robbed a lunch truck in Teterboro. Novak did not prepare a formal statement, but instead summarized defendant's statement in his report. Defendant was "very calm" during the interview and "very soft spoken, very quiet."

After that, Englewood Police Officers Peter Schwartz and Kurt Wilhelm met with defendant. Defendant was not handcuffed or shackled during the interview, and Schwartz did not tell him that he was under arrest. Schwartz advised defendant of his Miranda rights by using a Miranda form. Defendant signed and initialed the form; Wilhelm signed as a witness. Defendant agreed to provide a buccal swab for DNA testing, and signed a consent form. Schwartz asked defendant about the Englewood robbery. Defendant said he had nothing to do with it but he had overheard Clarke and Brown bragging about it. In Schwartz's report, he wrote that Clarke and Brown were involved in the Englewood robbery; at the suppression hearing, Schwartz testified that defendant was not involved in that robbery.

At the suppression hearing, defendant produced two witnesses and testified on his own behalf. One of defendant's witnesses was Charles Zisa, Chief of the Hackensack Police. Defense counsel produced a press release that Zisa had allegedly issued soon after defendant was taken into custody. The press release said that defendant had been arrested at his house. Zisa testified that he had no recollection of the press release, or of this case, so he could not say whether he said that defendant had been arrested at his house. The article contained no direct quotations attributed to Zisa.

Defendant's other witness was his niece, Carmisha Coleman. She testified that she was with her mother and defendant in the living room of the apartment when the police arrived on December 31, 2004. The door to the apartment, located in the living room, was "already open" when the police arrived. Coleman saw one officer standing at the door, one at the top of the stairs, and another outside the apartment building. The officer at the door said he was looking for defendant. The officer stepped inside the living room and began looking around. He looked inside a bag containing a bottle of bleach defendant had with him, which he had just purchased from a nearby store. When defendant left with the officer, he was not handcuffed and the officer did not tell him that he was under arrest or that the police had a warrant for his arrest.

Defendant testified that on December 31, 2004, he was standing outside his apartment building when he saw three police officers stop in front of the building. He opened the front door to the building and walked up the stairs to his apartment. The officers followed him into the building. He opened the door to his apartment and before it closed behind him, Guttierez stopped it. When asked if Guttierez entered the apartment, defendant said, "not that I know of."

Guttierez grabbed his elbow and asked him if he would go to the police station to answer questions. Defendant asked why he was wanted for questioning, and Guttierez told him that he already knew why. None of the officers told him that he could refuse to go with them.

Defendant followed Guttierez to the police car and sat in the back seat. After entering the police car, Ferraioli handcuffed defendant's hands behind his back. When they arrived at the police station, the officers removed the handcuffs and placed defendant in a room with two officers, who asked him about four robberies in Hackensack without advising him of his Miranda rights. Defendant denied involvement in the robberies.

On cross-examination, defendant said that after he told the police that he had nothing to do with the robberies, they gave him a Miranda form to sign, and he signed it, but it was not one of the Miranda forms produced at the hearing. He said that the police had his signature on file and that they must have forged his signature on the Miranda forms. He also denied signing the consent form for the buccal swab, though he admitted that he had agreed to allow the swab.

Defendant testified that from the time that he was taken to the police station until about midnight he was continuously questioned by police officers. The last officer with whom he spoke was Garnto, who was the only officer who offered him food. Prior to that, he received no bathroom breaks, food or water. He said he was so tired that he was falling asleep during Garnto's questioning. At no time during any of the interviews did he feel free to leave.

The prosecutor asked defendant if, before December 31, 2004, he knew what his Miranda rights were, and he answered "[s]omewhat." When asked if he knew that he had the right to remain silent, defendant answered "[n]ot really." Defendant had two prior convictions for drug offenses.

The court denied defendant's motion to suppress, finding that his statements were not the fruits of an illegal arrest and that he was advised of and waived his Miranda rights before he made the statements. The court accepted the officers' testimony that they did not arrest defendant at his apartment and that he had voluntarily agreed to go to police headquarters with them to answer questions. The court found incredible defendant's contention that the police handcuffed him while he was inside the police car. The court attributed little weight to the press release. The court found that Coleman's testimony did not support defendant's argument. She testified that the police came to the apartment looking to question defendant. She did not testify that the police were there to arrest him or that they did arrest him. The court found no credible evidence that the police denied defendant of food or drinks or that he was sleep deprived. Defendant was not questioned for an unreasonably long period of time; he was not forced into the police car; and all of the officers who spoke with him said that he was cooperative.

The court found it incredible that defendant did not know his Miranda rights before police questioned him. The court found that defendant signed the Miranda forms, rejecting his contention that his signatures were forgeries. Thus, the court found that defendant gave his statements after being advised of and waiving his Miranda rights.

At a subsequent hearing, Garnto testified about the statement that defendant gave him on December 31, 2004. Garnto testified that he and Detective-Sergeant Roselli traveled to the Hackensack police department to interview defendant on December 31, 2004, arriving just after 8:00 p.m. Garnto advised defendant of his Miranda rights by using a Miranda form. Defendant was "very cooperative," and signed and initialed the form.

After advising defendant of his rights, Garnto did a preinterview, asking him about his involvement in the Garfield E-Z Shop robbery. Then he took a formal statement, which consisted of the same types of questions that he asked in the preinterview. The statement began at 9:37 p.m. and ended at 11:25 p.m. Defendant read the statement, initialed each page, and signed it. The court found that defendant freely gave the statement to Garnto, and that defendant had not been subjected to conditions that overbore his will.

On appeal, defendant argues that his statements should have been suppressed because they were the fruits of an illegal arrest. "The test for determining whether [a] defendant was arrested is that of the objective reasonable person. That is, considering all of the surrounding circumstances, would a reasonable person conclude that he is not free to leave." State v. Craig, 237 N.J. Super. 407, 412 (App. Div. 1989), certif. denied, 121 N.J. 662 (1990). The trial court's findings on this issue are entitled to deference and will be rejected by an appellate court only if they are unsupported by credible evidence. Id. at 413.

The State analogizes this case to State v. Moore, 122 N.J. 420 (1991) and Craig, supra, 237 N.J. Super. 407, where our courts found no arrest where the defendants had agreed to answer questions about crimes at the police stations, and the police testified that they did not place the defendants under arrest prior to transporting them to the police stations. In both cases, the trial court accepted the testimony of the State's witnesses, and the appellate courts affirmed those findings because they were supported by the record. Moore, supra, 122 N.J. at 443; Craig, supra, 237 N.J. Super. at 413.

Here, the record supports the trial court's finding that defendant was not arrested before he gave his statements to the police, and no reasonable person would believe that he was under arrest when he did so. Ferraioli, Guttierez and Seibel testified that they had asked defendant to accompany them to police headquarters for questioning, and he agreed to go. They did not tell him that he was under arrest, and they did not restrain him or use force or otherwise coerce him. The trial court rejected defendant's testimony that he was handcuffed after he was placed inside the police car.

The court appropriately attributed little weight to the press release, as it was hearsay, and it was not reliable. Coleman's testimony did not support defendant's position; she said that the police came to the apartment to question defendant, and he agreed to leave with them. Nothing that she said suggests that he was arrested.

The State conceded that it had had no evidence linking defendant to the crimes prior to his statements. The only reason that the police wanted to question defendant was that he was a friend of Clarke. None of the officers were instructed to arrest defendant, and nothing in the record suggests that they arrested him when they brought him to the police station for questioning. The evidence fully supports the trial court's finding that defendant was not arrested before he gave his statements to police. Consequently, the court did not err in denying defendant's suppression motion.

IV. The Jury Instruction

Next, defendant contends that the trial court committed reversible error when it informed the jury at the close of the State's case that half of the case was over. The court told the jury the following:

The State rests.

Ladies and gentlemen, you've heard one half of the case. Make no conclusions. Don't decide anything. Keep an open mind. I said we were going to work straight through until five o'clock today. Another one of the lies by the Judge because the next step is [sic] we did not know how long the witnesses would take or how long the stipulations would be.

The stipulations saved us about two hours today so that's why it's 3:35 and that's why we're going to break now. And I am going to excuse you for the weekend.

The court instructed the jury to return the following week when the trial would probably conclude.

On appeal, defendant contends, without any substantive explanation, that the court's statement to the jury "diluted the State's burden of proof and amounted to a judicial imprimatur suggesting that the defendant had the obligation to produce proofs to counter the State's allegations." Because defendant did not raise this issue in the trial court, we address it under the plain error rule; it will be grounds for reversal only if "it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

Defendant's argument is without merit. The court was referring to scheduling matters when it informed the jury that it had heard half of the case. Defendant has not explained how the court's comment diluted the State's burden of proof or otherwise suggested that he had an obligation to rebut the State's allegations. The court properly instructed the jury that defendant was presumed innocent and that the State had the burden of proof. The jury is presumed to follow the court's instruction. State v. Wilder, 193 N.J. 398, 415-16 (2008).

V. Motion for Judgment of Acquittal

Defendant contends that the court erred in denying his motion for judgment of acquittal at the close of the State's case on the weapons offenses, stolen car offenses, Hackensack robbery, and Teterboro robbery. The only charges for which defendant did not request judgment of acquittal were those relating to the E-Z Shop robbery, although he did seek acquittal of the weapons offenses that related to that robbery.

A motion for judgment of acquittal should be denied if, after resolving all inferences in favor of the State, the evidence is sufficient to support a conviction beyond a reasonable doubt. State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000). Here, resolving all inferences in favor of the State, as the court was required to do, the evidence was sufficient for the jury to find defendant guilty of all offenses.

In his statement to the police, defendant admitted that he, Brown and Clarke drove a stolen car to the Hackensack BP gas station to commit a robbery. Defendant directly implicated himself in the car theft, telling Carroll that he, Brown and Clarke took the car from a "building in Hasbrouck Heights," drove it around and then decided to rob the gas station because they needed money. When the three men arrived at the gas station, Brown and Clarke carried guns and went to the attendant's booth, while defendant "stayed in the back of the station."

From that evidence, a jury could conclude that defendant constructively or jointly possessed the guns used to carry out an armed robbery. One constructively possesses a weapon when someone else has immediate control and dominion over the weapon, and the constructive possessor has the ability to gain control over it. State v. Schmidt, 110 N.J. 258, 270 (1988). Joint possession exists when two or more people share actual or constructive possession of an item. State v. Morrison, 188 N.J. 2, 14 (2006). Either type of possession would make defendant liable for the underlying weapons offenses. See N.J.S.A. 2C:2-1(c) (explaining that possession is an act that may form the basis of a crime.) The facts as defendant related in his statement to the police were sufficient for the jury to conclude that he jointly or constructively possessed his codefendants' weapons.

With respect to the Teterboro armed robbery, defendant told Carroll that he robbed an old man in a lunch truck after committing the Hackensack BP robbery. Novak's report said that defendant waited in the car while Clarke and Brown robbed a man in a lunch truck. As Brown's and Clarke's accomplice, defendant could be found guilty of their crimes.

In sum, the court correctly denied defendant's motion for judgment of acquittal at the close of the State's case.

VI. Read-Back of Toronto's Testimony

Defendant's next argument is that his right to be tried by an impartial jury was violated by the trial court's response to the jury's request for a read-back of the testimony of John Toronto, the food truck operator, and by the court's asking the jury what time it wanted to end deliberations for the day. Because defendant did not raise these challenges in the Law Division, they are subject to the plain error rule. R. 2:10-2.

At approximately 3:00 p.m. on the first day of deliberations, the jury submitted a note to the court that said: "We would like to review the testimony of Mr. Toronto." The court informed the parties that it was "not happy having [sic] read back of a third of the trial." Thus, the judge suggested to both counsel that he ask the jury to be more specific about which part of Toronto's testimony it would like to hear again. Defendant and the State agreed to that suggestion, so long as the court informed the jury that if it could not be specific or if it wanted to hear all of Toronto's testimony, then all of his testimony would be played back. The court then instructed the jury as follows:

I'm going to send you back down to the jury room for about two or three minutes and have you try to be more specific of what part of the testimony, what section of the testimony [sic]. It was not that long a trial. You each have individual recollections of what the testimony was and collectively what the testimony is and hopefully you can resolve it.

If you cannot we have a court record of what was said but that was a major part of the trial and that will be a substantial amount of time to hear that testimony over. I don't want to have . . . you go through and have to listen to a lot of long testimony if you can resolve this or delineate the issue a little bit more specifically.

You may have some disputes as to the testimony. That's what juries do. Jurors have disputes as to their recollection of the testimony. If . . . you can't agree of course we'll read it back to you. If you can delineate it, have the foreperson give me a further note.

So I'm going to send you back down for five more minutes. If you can give me a more delineated question or a more specific question, what part of the testimony, what section of the testimony that would be fine. If you cannot we will bring you back up and we'll read the whole testimony back. I hope we don't have to do that.

Immediately after saying that, the court made the second comment about which defendant complains.

The other thing I'd like you to discuss in the jury room is I have always been controlling what time we stop the court sessions but we don't have witnesses today. We have deliberations today and you collectively without the alternate's input, will have to decide how long you wish to deliberate. If you want to stop at four o'clock that's fine. If you wish to go to 4:30 that's also good.

We have had some juries that were really into their deliberations and said if no one has a time constraint -- we have one juror who has a class so we have to be aware of our one juror who has the class in New York City, but maybe we stay an extra fifteen or twenty minutes or a half hour to further deliberations [sic] if you're making good progress or maybe we stay an extra hour. If not we can come back tomorrow.

I'd like to know what time you'd like to deliberate to and we normally take mid-afternoon breaks. If you feel you need a break there may be some smokers in the group. I won't make any negative comments about smokers but if someone needs to have a break to be able to smoke let me know when you come back if you need a break. When I send you back down I may give you a short break.

Do we need a break, do we want a break, can we delineate the question and how late do you want to deliberate tonight. Those are not questions for the Judge to determine. Those are questions for the jury to determine.

After the jury left the courtroom, the court asked counsel if either had an objection to what the court had said. Both answered "no."

The jury returned a note saying that it wanted to deliberate until 4:30 p.m., it did not need a break, and it no longer requested a read-back of Toronto's testimony. At 4:45 p.m., the jury returned its verdict.

Whether to read back a portion of or all of a witness's testimony lies within the broad discretion of the trial court. State v. Wilson, 165 N.J. 657, 660 (2000). Here, the court did not abuse its discretion. The court made clear to the jury that if it could not be more specific or if it wanted to hear all of Toronto's testimony again, the court would have Toronto's entire testimony read back to them. That the jury changed its mind does not establish coercion. Defendant agreed with the court's suggested way of dealing with the jury's request, and he raised no objection after the court spoke to the jury.

Defendant contends that the court coerced the jury when it inquired about the length of time the jury wished to deliberate that day. We disagree. A trial court is not prohibited from interrupting deliberations to inquire about time-management concerns. State v. Barasch, 372 N.J. Super. 355, 361-62 (App. Div. 2004). Whether the interruption amounted to coercion must be examined on a case-by-case basis. State v. Figueroa, 190 N.J. 219, 238-39 (2007); Barasch, supra, 372 N.J. Super. at 362. As a general matter, coercion will be more likely when the court sets or implies a deadline for deliberations. State v. Nelson, 304 N.J. Super. 561, 566 (App. Div. 1997). When the court simply inquires about the anticipated amount of time a jury will need to continue deliberations, coercion is less likely. See State v. Tarlowe, 370 N.J. Super. 224, 238 (App. Div. 2004).

Here, the court did not interrupt deliberations to ask the jury how long it wanted to deliberate. Instead, the court posed the question on the heels of its response to the jury's request for a read-back. The court's inquiry was not coercive. It simply asked the jury to consider the time at which it wished to end for the day. Although the court did not remind the jury that it should not feel pressured to reach a verdict, in context, that failure did not have a coercive effect. While the record does not say exactly when the jury began its deliberations, it does show a lunch break during deliberations. Thus, deliberations began some time in the morning. The scheduling inquiry was made around 3:00 p.m. Under these circumstances, there was nothing inappropriate about the court's comments.

VII. Certain Persons Not to Have Weapons Convictions

Next, we address defendant's contention that his conviction on counts forty-two and forty-three (certain persons not to have weapons), N.J.S.A. 2C:39-7b, must be vacated because the court erroneously instructed the jury that accomplice liability applied to those counts. We reject that argument.

After the jury returned its verdict on the other counts, the State entered into evidence defendant's prior convictions, and the court instructed the jury on the law regarding the certain-persons counts. Defendant does not challenge that initial charge.

About ten minutes after the court sent the jury to deliberate, the jury submitted the following question: "Do the accomplice rules apply to these charges or must he have actual possession?" The court held a brief sidebar conference with counsel that was not recorded. Then, the court answered the jury question as follows: "The accomplice rules apply in this case. It applies to the entire case. This was part of the indictment for the entire case. The accomplice rules apply." Defendant did not object to that answer. About ten minutes later, the jury returned a guilty verdict on both counts.

Defendant contends that the court's answer was erroneous because the accomplice theory of liability cannot apply to a possessory offense. Defendant relies on State v. Williams, 315 N.J. Super. 384, 391 (Law Div. 1998), where the trial court declined to apply accomplice liability to a possessory offense because an accomplice, by definition, must share in the intent that is an element of the substantive crime for which his codefendant is charged. We expressed similar qualms about the application of accomplice liability to a possessory offense in State v. Cook, 300 N.J. Super. 476 (App. Div. 1996). In dicta, we observed that "[w]hether accomplice liability even applies to a possessory weapons offense is doubtful." Id. at 489.

Even if, however, accomplice liability does not apply to certain-persons offenses, the court's instruction to the jury that accomplice rules apply in this case was harmless. Defendant was charged with a violation of N.J.S.A. 2C:39-7b, which provides that a person having been convicted of certain crimes, "who purchases, owns, possesses or controls a firearm is guilty of a crime in the second degree." To convict a defendant of a certain-persons offense, the jury must find anew that the defendant possessed the weapon. State v. Ragland, 105 N.J. 189, 193-94 (1986). Here, after defendant had been convicted of the prior counts, the State entered defendant's prior convictions into evidence, and the court instructed the jury on the elements of the certain-persons offenses using the Model Jury Charge. The charge referred back to the court's earlier charge on the elements of possession. The jury, therefore, was properly instructed as to what elements were necessary to find defendant guilty of the certain-persons offenses. Given the suitability of the jury instruction, we agree with the court in Cook, supra, that "once the jury is instructed as to these principles, which is what occurred here, the giving of an erroneous accomplice charge is, at most, harmless." 300 N.J. Super. at 490. Accordingly, we affirm the convictions as to the certain-persons weapons offenses.

VIII. New Trial Motion

Defendant contends that the court erred in denying his motion for a new trial. A court should order a new trial only if "there was a manifest denial of justice." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985); R. 3:20-1. Here, there was no miscarriage of justice. Defendant's argument that the verdicts were inconsistent, and that the evidence did not otherwise support his convictions, are without sufficient merit to warrant additional discussion in this opinion. R. 2:11-3(e)(2). In addition to what we have already stated, we add only that there was sufficient evidence, based on defendant's statements to the police, to support each of the convictions.

IX. Defendant's Sentence

Defendant's aggregate sentence was sixty-eight years, with approximately forty-four years of parole ineligibility. We first address his claim that the court abused its discretion in imposing an extended term on the armed-robbery conviction.

In deciding a motion to impose a discretionary extended term, the sentencing court must first determine whether the defendant meets the statutory requirements. State v. Pierce, 188 N.J. 155, 169 (2006). If he does, the decision to grant an extended term is within the court's discretion. Ibid. If the court decides to grant the motion, then the permissible sentencing range for the crime is the bottom of the ordinary term to the top of the extended term. Ibid. The sentencing court must weigh the aggravating and mitigating factors in setting the term. Id. at 170.

The State moved for a discretionary extended term for the armed robbery of the Teterboro catering truck. The court granted the motion pursuant to N.J.S.A. 2C:44-3(f), which provides that a court may impose an extended term when the defendant has been convicted of any of the enumerated offenses, which includes armed robbery, "and in the course of committing or attempting to commit the crime, including the immediate flight therefrom, the defendant used or was in possession of a stolen motor vehicle." N.J.S.A. 2C:44-3(f). Here, defendant used a stolen vehicle to commit the Teterboro robbery.

Defendant does not dispute that he met the criteria for an extended term. Instead, he argues that the court should not have imposed an extended term because his sentence was subject to NERA. He further contends that the court erroneously found aggravating factors one, two and eleven, and used them to justify imposing an extended term. He claims that Toronto was not physically harmed during the armed robbery, and "the nature of the crime was not distinguishable," thus the court erred in finding factors one and two. He also contends that the court erred in finding aggravating factor eleven.

The State concedes that the trial court erred in finding aggravating factor eleven because a fine was not an appropriate sentence for the crimes that defendant committed. Beyond that, the State contends that the record supports the court's findings and the court properly exercised its discretion in imposing an extended term. It contends that imposition of NERA to a sentence does not preclude a court from imposing a discretionary extended term.

Initially, we agree with the State that the court did not err in imposing the extended term. N.J.S.A. 2C:44-3(f) authorizes a court, in its discretion, to impose an extended term on a conviction of armed robbery when the defendant used a stolen vehicle to carry out the crime. Defendant used a stolen car to commit the Teterboro armed robbery. Thus, the crime met the requirements for a discretionary extended term. The court acted within its discretion by deciding to impose it.

Nevertheless, the court did not engage in a substantive analysis of the real time that defendant will have to serve as a result of the application of NERA. See State v. Marinez, 370 N.J. Super. 49, 58 (App. Div.), certif. denied, 182 N.J. 142 (2004) (explaining that in imposing an extended term, court should consider the time a defendant will actually serve in light of NERA). Simply noting that the sentence was subject to NERA does not satisfy the court's obligation to consider the real time defendant will have to serve.

The State requested that the court impose four consecutive terms, totaling a life sentence plus thirty-six years. With respect to the aggravating factors, the State urged the court to find the following: one (nature and circumstances of the offense), two (gravity and seriousness of the harm inflicted on the victim, including the victim's vulnerability due to age), three (risk that defendant will commit another offense), six (defendant's prior record), nine (need to deter), eleven (risk that imposing only a fine would be considered a cost of doing business), twelve (age of the victim) and thirteen (use of a stolen vehicle in committing the crime).

In imposing the sentence, on the record, the court found the same aggravating factors that the State urged it to find. However, the judgment of conviction lists only aggravating factors three, six, nine and eleven. The court did not discuss its basis for finding the aggravating factors, but simply stated that there were three separate robberies with three separate victims, and it discussed defendant's prior record. The court also found no mitigating factors, but the judgment of conviction lists mitigating factors ten (likely to respond to probationary treatment) and eleven (excessive hardship). Thus, the court needs to revisit that analysis.

The court also failed to adequately explain its reasons for imposing a term beyond the minimum on counts fifteen, sixteen, seventeen, twenty-four, twenty-six, twenty-eight, twenty-nine, thirty and thirty-two. The range for the third-degree offenses (counts fifteen, sixteen, twenty-six, twenty-eight) is three to five years imprisonment. N.J.S.A. 2C:43-6(a)(3). The court imposed four years imprisonment on each of the counts. For second-degree offenses (counts seventeen, twenty-nine, thirty and thirty-two), the range is five to ten years imprisonment. N.J.S.A. 2C:43-6(a)(2). The court imposed ten years imprisonment on each count. And for the first-degree offense (count twenty-four), the range is ten to twenty years imprisonment, N.J.S.A. 2C:43-6(a)(1), and the extended term is twenty years to life imprisonment. N.J.S.A. 2C:43-7(a)(2). The court imposed an extended term of thirty years imprisonment. The court did not, however, adequately explain its rationale for the sentences it imposed. It gave no explanation as to why it chose to impose several maximum terms.

Finally, defendant contends that the court erred in imposing multiple consecutive terms. He claims that the court did not properly consider the factors 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). Those factors 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.

[Id. at 643-44 (footnotes omitted).]

A 1993 amendment to N.J.S.A. 2C:44-5a(2) changed criterion six by allowing unlimited cumulation of consecutive sentences. L. 1993, c. 223.

We agree with defendant that the court did not adequately explain its reasons for imposing multiple consecutive prison terms. Although the court mentioned three different crimes, with three different victims, it failed to discuss how that affected the imposition of the sentence. The court made no mention of the remaining Yarbough factors, which could have had an effect upon whether consecutive or concurrent terms were implicated. Miller, supra, 108 N.J. at 122.

For these reasons, we vacate defendant's sentence.

We affirm defendant's convictions, vacate his sentence, and remand for resentencing.

Codefendants Kenyatta Clark, Tori Parham and Jermaine Sibdhannie pleaded guilty to various charges. Codefendant Daniel Brown was tried separately and convicted of multiple offenses. He has filed a separate appeal. State v. Brown, A-2851-06.

All references to the counts of the indictment in this opinion are to the counts of the original indictment. For the jury verdict sheet, the counts of the indictment were renumbered as follows:

ORIGINAL INDICTMENT

JURY VERDICT SHEET

counts fifteen and sixteen

counts one and two

count seventeen

count three

count twenty-four

count nine

count twenty-five

count ten

count twenty-six

count eleven

count twenty-seven

count twelve

count twenty-eight

count thirteen

count twenty-nine

count fourteen

count thirty

count fifteen

count thirty-one

count sixteen

count thirty-two

count seventeen

count thirty-three

count eighteen

count thirty-five

count nineteen

(continued)

(continued)

47

A-6332-06T4

June 5, 2009