IN THE MATTER OF THE COMMITMENT OF J.B

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2943-09T1

IN THE MATTER OF THE

COMMITMENT OF J.B.

_________________________

March 28, 2012

Submitted March 20, 2012 - Decided

Before Judges Reisner and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-06-1754.

Joseph E. Krakora, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior AssistantProsecutor, ofcounsel; John J.Scaliti, LegalAssistant, onthe brief).

PER CURIAM

This is J.B.'s second appeal challenging the maximum period that he shall remain on Krol1 status (the max-out date). In his prior appeal, we affirmed J.B.'s continued Krol status, but remanded for a statement of reasons for setting February 4, 2014 as the max-out date. I/M/O The Commitment of J.B., No. A-1786-07 (App. Div. June 16, 2009) (slip op. at 2, 20). We specifically held that the court had not set January 22, 2009 as the max-out date, and directed the court to explain why it set February 4, 2014 as the max-out date as opposed to January 22, 2009. Id. at 15, 20.

The underlying facts and procedural history of this matter are set forth in our prior opinion, and need not be repeated here. Id. at 2-10. The following facts are pertinent to our review.

After an altercation with his ex-girlfriend, R.F., at her college campus, J.B. was instructed not to return there. Despite this, on November 30, 2000, J.B. returned, entered into R.F.'s dormitory without permission, and was arrested for trespassing.

On March 22, 2001, J.B. again returned to the campus, entered into R.F.'s dormitory, entered into the dormitory room R.F. shared with her roommate, S.B., without permission, and hid under S.B.'s bed. R.F. and S.B. returned to the room and sat on their beds eating their dinner, unaware that J.B. was there. J.B. emerged from underneath the bed, throwing S.B. from it. After the two women ran from the room, J.B. threw a television and stereo equipment out the window, and trashed the room and R.F.'s and S.B.'s property, causing $3,284 in damages. J.B. fled and was later arrested after attempting suicide.

In June 2001, two Bergen County indictments were returned against J.B. One indictment charged him with fourth-degree criminal trespass, N.J.S.A. 2C:18-3a, for his unlawful entry into the college dormitory on November 30, 2000; the other indictment charged him with third-degree burglary, N.J.S.A. 2C:18-2a, for his unlawful entry into R.F.'s and S.B.'s dormitory room on March 21, 2001, and third-degree criminal mischief, N.J.S.A. 2C:17-3a(1), for the damage he caused to R.F.'s, S.B.'s, and the college's property.

On remand, Judge Austin analyzed the Yarbough2 factors and concluded that consecutive sentences for the burglary and criminal mischief convictions were appropriate. He found that there were multiple victims, the crimes were independent of each other and involved separate acts of violence or threats of violence, and the convictions for which the sentences were imposed were numerous. He set February 4, 2014 as the max-out date. This appeal followed.

On appeal, J.B. raises the following contentions:

POINT I

THE INITIAL 6[-]1/2 YEAR MAXIMUM KROL STATUS DETERMINATION IS NOT VOID SIMPLY BECAUSE IT WAS NEVER RECORDED IN AN ORDER DUE TO CLERICAL OMISSION. FURTHERMORE, THE CRIMINAL MISCHIEF CHARGE SHOULD HAVE [. . .] MERGED WITH THE BURGLARY CHARGE OR, ALTERNATIVELY, SHOULD HAVE BEEN RUN CONCURRENTLY TO IT IN ACCORDANCE WITH THE USUAL PRINCIPLES OF SENTENCING. (PARTIALLY RAISED BELOW).

A. The Defendant's 6[-]1/2 Year Krol Status Cannot Be Increased Based Solely On A Clerical Omission.

B. Criminal Trespass Should Have Merged Into Burglary.

C. The Trial Court Erred In Not Running The Burglary And Criminal Mischief Charges Concurrently.

We decline to address J.B.'s contention in Point IA that the court had previously set January 22, 2009 as the max-out date. We addressed, and rejected, that contention on the merits in J.B.'s prior appeal. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971).

We reject J.B.'s remaining contentions that Judge Austin erred in not merging the criminal mischief conviction into the burglary conviction, and in imposing consecutive sentences for those convictions. A defendant's continued civil commitment

shall be established by a preponderance of the evidence, during the maximum period of imprisonment that could have been imposed, as an ordinary term of imprisonment, for any charge on which defendant has been acquitted by reasons of insanity. Expiration of that maximum period of imprisonment shall be calculated by crediting the defendant with any time spent in confinement for the charge or charges on which the defendant has been acquitted by reason of insanity.

[N.J.S.A. 2C:4-8b(3).]

"A trial court should determine the probable maximum ordinary aggregate terms that defendant would have received if convicted of the offenses charged, taking into account" merger and consecutive sentencing. In re Commitment of W.K., 159 N.J. 1, 6 (1999).

J.B.'s convictions for burglary and criminal mischief do not merge. See State v. Pantusco, 330 N.J. Super. 424, 450 (App. Div.) quoting State v. Martes, 266 N.J. Super. 117, 121 (Law Div. 1993), which stated that "[t]he [L]egislature had considered and specifically rejected a recommendation that a person could not be convicted both for burglary and for the offense it was his purpose to commit after the entry"), certif. denied, 165 N.J. 527 (2000); State v. Subin, 222 N.J. Super. 227, 234 (App. Div.) (discussing the legislative history of N.J.S.A. 2C:18-2, burglary, and issue of merger), certif. denied, 111 N.J. 580 (1988).

In addition, the imposition of consecutive sentences for the burglary and criminal mischief convictions was proper. "When multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence[.]" N.J.S.A. 2C:44-5a. "'[I]n fashioning consecutive or concurrent sentences under the Code, sentencing courts should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing.'" State v. Friedman, 209 N.J. 102, 122 (2012) (quoting Yarbough, supra, 100 N.J. at 630). Sentencing judges must state their reasons for imposing a consecutive sentence, and should consider the following factors:

(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; [and]

(e) the convictions for which the sentences are to be imposed are numerous[.]

[Yarbough, supra, 100 N.J. at 643-44.]

The record here establishes that the burglary and criminal mischief crimes were predominantly independent of each other, involved separate acts of violence or threatened violence and multiple victims, and the convictions for which the sentences were to be imposed were numerous. J.B. unlawfully entered and surreptitiously remained in R.F.'s and S.B.'s dormitory room, and terrified the women when he emerged from underneath S.B.'s bed and threw her from it. After the women fled from the room, J.B. committed the separate crime of criminal mischief by throwing large items out the window, which had the potential to injure others outside, and by trashing the room, and destroying R.F.'s, S.B.'s and the college's property. Accordingly, there was no error in the imposition of consecutive sentences.

If J.B. had been convicted of the offenses charged, the maximum period of imprisonment that could have been imposed, as an ordinary term of imprisonment, was five years for third-degree burglary, five years for third-degree criminal mischief, and eighteen months for fourth-degree criminal trespass. Thus, J.B.'s maximum Krol term is eleven and one-half years. Crediting J.B. with the three hundred and thirty-one days he spent in confinement, his Krol status will expire on February 4, 2014.

1 State v. Krol, 68 N.J. 236 (1975).

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