STATE OF NEW JERSEY v. KEITH V. CUFF
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4419-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH V. CUFF,
Defendant-Appellant.
___________________________
Submitted December 12, 2017 – Decided February 2, 2018
Before Judges Reisner, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
13-05-1446.
Joseph E. Krakora, Public Defender, attorney
for appellant (Tamar Lerer, Assistant Deputy
Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Nancy P. Scharff,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Keith Cuff was indicted for fifty-five crimes
related to five robberies and the stop of a vehicle. A jury
convicted defendant of nineteen of those crimes. Defendant's
convictions included two counts of first-degree armed robbery,
N.J.S.A. 2C:15-1; three counts of first-degree kidnapping,
N.J.S.A. 2C:13-1(b)(1); second-degree burglary,
N.J.S.A. 2C:18-2;
two counts of second-degree conspiracy to commit robbery "and/or"
kidnapping,
N.J.S.A. 2C:5-2,
N.J.S.A. 2C:15-1, and
N.J.S.A. 2C:13-
1(b)(1); and various weapons offenses. Defendant was sentenced
to an aggregate term of ninety-eight years in prison, with over
sixty-six years of parole ineligibility.
Defendant appeals his convictions and sentences. We affirm
all of his convictions and sentences, with the exception of the
two convictions for conspiracy to commit robbery "and/or"
kidnapping. We vacate and remand those two convictions, which
were counts 15 and 46 of the indictment, for further proceedings.
I.
The charges against defendant arose out of five separate
armed robberies and an incident where a vehicle in which he was
riding was stopped, but defendant fled and stole a truck in the
process of getting away. Defendant was indicted for those crimes
along with three co-defendants. One of the robberies took place
in June 2010, and the other four robberies took place between
February and May 2011. Four of the robberies involved home
2 A-4419-15T1
invasions, where numerous victims were threatened with guns and
tied up.
At trial, one of the co-defendants and a cooperating witness
gave testimony against defendant and described his involvement in
the various incidents. The cooperating witness admitted to
participating in all of the robberies and testified that he was
the driver of the vehicle that was stopped and from which defendant
fled. The State also presented testimony from several of the
victims. Those victims recounted that the men who robbed them
wore black masks, threatened them with guns, and bound their hands
and legs, mainly using zip ties. The State's physical evidence
included two guns, masks, and zip ties that were recovered from
or near the stopped vehicle from which defendant fled. DNA
evidence linked defendant to one of the masks.
The first robbery occurred on June 25, 2010, in Cherry Hill.
The homeowner testified that when he entered his home, he
encountered three men, one of whom pointed a gun at his head. The
men took money, traveler's checks, and a Rolex watch. Before
leaving, they tied his hands and feet. The cooperating witness
testified that he, defendant, and another co-defendant committed
that robbery.
The second robbery occurred on February 28, 2011, in Cherry
Hill. A family consisting of a husband, wife, and four children
3 A-4419-15T1
lived in that home. The parents had gone out for the evening,
leaving their children at home. When the parents returned home
at approximately 11:30 p.m., two masked men armed with guns
"jumped" the husband. The husband's hands were tied behind his
back with zip ties. The men then took several thousand dollars
from the husband's pockets. Thereafter, the men left the husband
and wife tied up in their home. Eventually, the husband was able
to untie his hands. When he went upstairs, he found two of his
teenage daughters tied up.
The cooperating witness testified that he and defendant
committed the robbery on February 28, 2011. He explained that
they knew that the homeowner owned a jewelry and pawn shop and
that they had followed him home a few days before the robbery.
The cooperating witness also explained that he and defendant broke
into the home, tied up the daughters, and waited armed with guns
for the homeowner to arrive.
The third robbery took place on March 3, 2011, in Pine Hill.
The homeowner owned a local grocery store. He arrived home at
approximately 10:30 p.m., parked his van, and encountered two
armed men wearing black masks. One of the men pointed a silver
gun at the back of his neck. He was ordered to lie down, and the
men took everything he had in his pockets, which included $2200
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in cash, his wallet, and keys. The men then left in the homeowner's
van.
The cooperating witness testified that a third party drove
him and defendant to the home. He explained that he and defendant
were armed with handguns and waited for the victim to come home.
When the victim arrived, they took his money and his van. They
parked the van around the corner and then left that scene in the
vehicle driven by the third party. The police later recovered the
victim's van.
The vehicle stop occurred on March 29, 2011, in Gloucester
Township. The police responded to a call regarding an incident
at a shopping center involving persons driving a white Honda
Accord. A car matching that description was pulled over by a
police officer. The officer testified that as the car came to a
stop, the front passenger door opened and a man exited the car and
ran away. The police searched the car and found three black ski
masks, a cell phone, and zip ties. DNA tests revealed defendant's
DNA on one of the recovered black masks. During a search of the
surrounding area, the police found two loaded handguns.
The cooperating witness was the driver of the car. He
testified that defendant was the man who ran from the car. The
cooperating witness also testified that defendant later told him
that he was able to get away because he stole a truck from a
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construction site. The owner of the truck testified that his
truck was taken from his excavation company, which was in the
vicinity of where the car was stopped.
The cell phone recovered from the white Honda Accord was
examined, and text messages between the cooperating witness and
defendant were recovered. One of the messages discussed getting
zip ties the night before the robbery on March 3, 2011. Another
message referenced defendant by the nickname "Bleak."
The fourth robbery occurred on April 2, 2011, in Gloucester
Township. The homeowner lived with his daughter, son, and fiancée.
The daughter was home alone. At approximately 11:30 p.m., the
homeowner, his fiancée, and his son arrived home. After entering
the home, each of them was confronted by masked men armed with
guns. The men took the homeowner upstairs where he was directed
to open a safe in his bedroom. The men then took money from the
safe and jewelry from a cabinet. The homeowner was tied up,
carried into a bathroom, and placed in a bathtub. His bound
fiancée was also placed in the bathtub. After the men left, the
homeowner freed himself with the help of his fiancée.
The fiancée and the two children, who were ages sixteen and
twelve at the time of the robbery, also testified. They each
described being confronted by armed men who tied them up. The
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daughter recounted how she was hog tied and left for approximately
ninety minutes.
The cooperating witness testified that he and defendant,
together with two other men, committed the robbery on April 2,
2011. He explained that a person they knew had worked for the
homeowner and knew that the homeowner had a safe in his home. That
person then showed defendant the location of the home. The
cooperating witness described how the men went to the home, tied
up the daughter, waited for the homeowner, confronted the victims
with guns, took over $60,000 from the safe, and left the victims
tied up.
The fifth and final robbery took place on May 14, 2011, in
Sicklerville. When the homeowners, a man and woman, came home,
they were confronted by three masked men with guns. The men
directed the man upstairs where he opened his safe. The
cooperating witness testified that he and defendant, along with
two other men, committed the robbery on May 14, 2011.
Before trial, defendant moved to sever the various counts of
the indictment so that the counts relating to each of the six
incidents would be tried separately. The trial court denied that
motion, finding that there were similarities among each of the
incidents and that defendant would not be prejudiced by having a
comprehensive trial.
7 A-4419-15T1
Defendant and one of his co-defendants were tried together
over twelve days. At trial, the jury heard testimony from numerous
witnesses, including law enforcement personnel, victims, a co-
defendant and, as previously noted, the cooperating witness. Both
the co-defendant and cooperating witness had negotiated deals with
the State. None of the State's witnesses were offered as expert
witnesses and, thus, they testified as fact witnesses.
The jury convicted defendant of crimes related to the
robberies that took place on February 28, 2011, March 3, 2011, and
April 2, 2011, and the car stop on March 29, 2011. Defendant was
acquitted on the charges related to the robberies that occurred
on June 25, 2010, and May 14, 2011.
Specifically, defendant was convicted of two counts of first-
degree armed robbery,
N.J.S.A. 2C:15-1; three counts of first-
degree kidnapping,
N.J.S.A. 2C:13-1(b)(1); one count of second-
degree conspiracy to commit armed robbery,
N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:15-1; two counts of second-degree conspiracy to commit
robbery "and/or" kidnapping,
N.J.S.A. 2C:5-2,
N.J.S.A. 2C:15-1,
and
N.J.S.A. 2C:13-1(b)(1) (counts 15 and 46); three counts of
second-degree unlawful possession of weapons,
N.J.S.A. 2C:39-5(b);
two counts of second-degree possession of weapons for unlawful
purposes,
N.J.S.A. 2C:39-4; one count of second-degree burglary,
N.J.S.A. 2C:18-2; two counts of fourth-degree aggravated assault
8 A-4419-15T1
with a firearm,
N.J.S.A. 2C:12-1(b)(4); two counts of fourth-
degree unlawful taking of means of conveyance,
N.J.S.A. 2C:20-
10(b); and a disorderly persons offense of false imprisonment,
N.J.S.A. 2C:13-3.
As noted, defendant was sentenced to an aggregate term of
ninety-eight years in prison, with over sixty-six years of parole
ineligibility. For the robbery "and/or" kidnapping convictions,
he was sentenced to eight years in prison on count 15, while the
conviction on count 46 was merged with convictions on other counts.
II.
On appeal, defendant makes five arguments which he
articulates as follows:
POINT I – THE TRIAL COURT'S REFUSAL TO GRANT
RELIEF FROM THE PREJUDICIAL JOINDER OF THE SIX
SEPARATE INCIDENTS VIOLATED DEFENDANT'S
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A
FAIR TRIAL. THIS PREJUDICE WAS EXACERBATED
BY THE TRIAL COURT'S FAILURE [TO] ISSUE A
PROPER LIMITING INSTRUCTION REGARDING THE
PROHIBITED USE OF ONE INCIDENT TO SHOW A
PROPENSITY TO COMMIT ANY OF THE OTHERS.
POINT II – THROUGHOUT THE CASE, WITNESSES'
TESTIMONY OVERSTEPPED THE BOUNDARIES OF
ACCEPTABLE LAY OPINION TESTIMONY,
NECESSITATING REVERSAL OF DEFENDANT'S
CONVICTIONS.
A. Introduction
B. The Testimony of the Six Lay Witnesses
9 A-4419-15T1
C. The Witnesses Provided Expert Testimony
Without Being Qualified As Experts And
Provided Inappropriate Lay Opinions.
Because All Of The Improper Testimony
Bolstered The State's Case, Its Admission
Necessitates Reversal Of Mr. Cuff's
Convictions
D. Conclusion
POINT III – THE VERDICT SHEET AND THE TRIAL
COURT'S ERRONEOUS RESPONSE TO THE JURY'S
QUESTION PRECLUDED THE JURY FROM CONVICTING
DEFENDANT OF SECOND-DEGREE KIDNAPPING. HIS
CONVICTIONS FOR FIRST-DEGREE KIDNAPPING MUST
BE REVERSED. (Not Raised Below)
POINT IV – THE TRIAL COURT'S REPEATED USE OF
"AND/OR" DURING THE JURY INSTRUCTIONS CREATED
THE DANGER OF A PATCHWORK VERDICT AND
NECESSITATES REVERSAL OF DEFENDANT'S
CONVICTIONS FOR CONSPIRACY, ROBBERY, AND
KIDNAPPING. (Not Raised Below)
POINT V – THE TRIAL COURT IMPROPERLY RAN
SEPARATE CHARGES STEMMING FROM THE SAME
CONDUCT CONSECUTIVELY AND IMPOSED AN EXCESSIVE
SENTENCE.
Having reviewed the record and law, we find no merit in
defendant's arguments, except those concerning his convictions on
counts 15 and 46. Thus, we affirm defendant's convictions and
sentences on all other counts, vacate his convictions on counts
15 and 46, and remand those two counts for further proceedings.
We also vacate the sentence imposed on count 15. We will analyze
each of defendant's five arguments.
10 A-4419-15T1
1. The Motion to Sever
Defendant argues that the denial of his motion to sever the
charges in the indictment violated his right to due process and a
fair trial. He also contends that the prejudice from a joint
trial was compounded by the trial court's failure to give jury
instructions on the use of other crimes evidence. We disagree.
Two or more offenses may be charged in the same indictment
if the offenses "are of the same or similar character or are based
on the same act or transaction or on [two] or more acts or
transactions connected together or constituting part of a common
scheme or plan." R. 3:7-6. Trial courts are vested with
discretion to sever charges if "it appears that a defendant or the
State [will be] prejudiced by a permissible or mandatory joinder
of offenses or of defendants . . . ." R. 3:15-2(b). In such
circumstances, the trial court may order separate trials on certain
counts. Ibid. We review such trial court rulings under an abuse
of discretion standard. State v. Sterling,
215 N.J. 65, 73 (2013).
Severance should be granted if there is a danger that the
jury could improperly use the evidence cumulatively. Our Supreme
Court has explained
[t]he relief afforded by Rule 3:15-2(b)
addresses the inherent "danger[,] when several
crimes are tried together, that the jury may
use the evidence cumulatively; that is, that,
although so much as would be admissible upon
11 A-4419-15T1
any one of the charges might not have
persuaded them of the accused's guilt, the sum
of it will convince them as to all."
[Ibid. (quoting State v. Pitts,
116 N.J. 580,
601 (1989)).]
"The test for assessing prejudice is 'whether, assuming the charges
were tried separately, evidence of the offenses sought to be
severed would be admissible under [N.J.R.E. 404(b)] in the trial
of the remaining charges.'" Ibid. (quoting State v. Chenique-
Puey,
145 N.J. 334, 341 (1996)).
In denying defendant's motion to sever, the trial judge
applied the governing standard and specifically went through the
requirements for admission under Rule 404(b), as set forth in
State v. Cofield,
127 N.J. 328, 338 (1992). First, the court
found that the other crimes evidence was relevant and probative
to identity, preparation, and planning. Second, the judge found
that the crimes were similar in nature and reasonably close in
time. In that regard, he noted that the six incidents occurred
within eleven months of each other and that all of the robberies
involved multiple masked intruders and firearms. Third, he found
that there was clear and convincing evidence of the other crimes
from the anticipated testimony of the cooperating witness and the
DNA evidence linking defendant to one of the recovered masks.
Finally, the court found that the probative value of the
12 A-4419-15T1
similarities among the incidents outweighed any potential
prejudice. We discern no abuse of discretion in the trial court's
decision to deny severance.
Defendant for the first time on appeal also contends that the
prejudice from the joinder was exacerbated by the trial court's
alleged failure to instruct the jury on the separate nature of
each crime. No such limiting instruction was requested at trial.
Accordingly, we review this argument for plain error. R. 2:10-2;
State v. Young,
448 N.J. Super. 206, 224 (App. Div. 2017).
The court here repeatedly instructed the jury to consider
each count separately and to consider only the evidence material
to each particular count. The court also instructed the jurors
that a verdict on one count should not control its verdict on any
other count. Consequently, we discern no error and certainly no
plain error.
2. The Alleged Impermissible Opinion Testimony
Defendant argues that six witnesses who testified at trial
gave improper opinion testimony. Specifically, defendant argues
that five of those witnesses gave expert opinions without being
properly qualified as experts. Those witnesses were four law
enforcement officers and an employee of the forensic laboratory
of the State Police. Defendant also argues that the sixth witness,
a police officer, gave an inadmissible opinion by explaining the
13 A-4419-15T1
inferences he drew from the facts collected during the
investigation.
We review the trial court's admission of testimony under an
abuse of discretion standard. State v. Miller,
449 N.J. Super.
460, 470 (App. Div. 2017). In a criminal case, we will only
reverse a jury conviction if the admission of the challenged
evidence "undermine[s] confidence in the validity of the
conviction[.]" State v. Weaver,
219 N.J. 131, 149 (2014).
Witnesses, including police officers, can testify in a
variety of roles. A fact witness is one who testifies as to what
"he or she perceived through one or more of the senses." State
v. McLean,
205 N.J. 438, 460 (2011). In terms of police officers,
fact testimony "has always consisted of a description of what the
officer did and saw[.]" Ibid.
In contrast, expert witnesses "explain the implications of
observed behaviors that would otherwise fall outside the
understanding of ordinary people on the jury." Ibid. "Expert
testimony is admissible '[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue.'" State v. Simms,
224 N.J. 393, 403 (2016) (quoting N.J.R.E. 702).
Lay opinion testimony is governed by N.J.R.E. 701, which
permits a witness not testifying as an expert to provide "testimony
14 A-4419-15T1
in the form of opinions or inferences . . . if it (a) is rationally
based on the perception of the witness and (b) will assist in
understanding the witness' testimony or in determining a fact in
issue." See McLean,
205 N.J. at 456; Miller,
449 N.J. Super. at
471. "Courts in New Jersey have permitted police officers to
testify as lay witnesses, based on their personal observations and
their long experience in areas where expert testimony might
otherwise be deemed necessary." State v. LaBrutto,
114 N.J. 187,
198 (1989).
Defendant challenges the testimony of Officer Michael
Rauscher, Officer Nicholas Arnold, Detective Patrick Cunane,
Detective Gary McBride, Detective Paul Audino, and William Rochin,
an employee of the State Police forensic laboratory. Defendant
contends that none of those six witnesses were identified as
experts, but that each of them gave opinion testimony without
being properly qualified as an expert.
Defendant has incorrectly characterized the challenged
testimony. A review of the trial transcripts shows that none of
these witnesses gave impermissible opinions. Most of the
challenged testimony consisted of the witnesses describing what
they did as part of the investigation of these crimes. To the
extent that the testimony was in the form of opinions or
inferences, it fell within the ambit of admissible lay opinion
15 A-4419-15T1
testimony. In other words, the testimony was rationally based on
the perceptions of the witnesses and helped to assist in
understanding the witnesses' testimony or a fact at issue. See
N.J.R.E. 701; McLean,
205 N.J. at 456; Miller,
449 N.J. Super. at
471.
It also should be noted that at trial, defendant's counsel
made very few objections to the testimony that defendant now seeks
to challenge. We, therefore, review the unchallenged testimony
for plain error. R. 2:10-2. Here, there was no plain error
because the challenged testimony was not "sufficient to raise a
reasonable doubt as to whether [the error] led the jury to a
verdict that it otherwise might not have reached." State v.
Galicia,
210 N.J. 364, 388 (2012) (quoting State v. Lazo,
209 N.J.
9, 26 (2012)).
Defendant contends that Officer Audino gave testimony that
neither a fact witness nor should an expert witness be permitted
to give. Specifically, he contends that Officer Audino testified
as to a number of inferences that he made based on the evidence
he gathered in this case, which led him to believe that defendant
was the perpetrator of all five robberies. This is a
mischaracterization of Officer Audino's testimony. The prosecutor
asked Officer Audino if he was "assigned to assist in an
investigation into a series of home invasions and armed robberies
16 A-4419-15T1
that happened in different towns in Camden County." Officer Audino
replied, "Yes, ma'am." He proceeded to testify about the
investigation and explained that the items found in the car stopped
on March 29, 2011, were similar to those reportedly involved in
the robberies. That testimony was not impermissible testimony.
Instead, it was admissible lay opinion testimony by a police
officer.
3. Defendant's Convictions for First-Degree Kidnapping
Defendant challenges his three convictions for first-degree
kidnapping contending that an error in the verdict sheet precluded
the jury from convicting him of second-degree kidnapping.
Defendant concedes that the jury was properly instructed on the
range of offenses related to kidnapping, including first-degree
kidnapping, second-degree kidnapping, criminal restraint, and
false imprisonment. Defendant points out, however, that the
verdict sheet failed to give the jury the option to indicate if
defendant was guilty of second-degree kidnapping.
The State acknowledges, as the record establishes, that the
verdict sheet did not provide a place to record a verdict for
second-degree kidnapping. Nevertheless, the State argues that any
error was harmless.
"Accurate and understandable jury instructions in criminal
cases are essential to a defendant's right to a fair trial."
17 A-4419-15T1
Galicia,
210 N.J. at 386 (quoting State v. Concepcion,
111 N.J.
373, 379 (1988)). "The charge must provide a 'comprehensible
explanation of the questions that the jury must determine,
including the law of the case applicable to the facts that the
jury may find.'" Ibid. (quoting Concepcion,
111 N.J. at 379)).
Accordingly, a jury charge "is a road map to guide the jury, and
without an appropriate charge a jury can take a wrong turn in its
deliberations." Ibid. (quoting State v. Martin,
119 N.J. 2, 15
(1990)). "A verdict sheet is an essential component of that road
map." Id. at 387.
"When there is an error in a verdict sheet but the trial
court's charge has clarified the legal standard for the jury to
follow, the error may be deemed harmless." Ibid. Even when the
trial court correctly instructs the jury, however, an error in the
verdict sheet may have the potential to mislead the jury. Id. at
387-88. Any discrepancy between the jury charge and the verdict
sheet should be resolved by the court and explained to the jury.
Id. at 388. "Because a verdict sheet constitutes part of the
trial court's direction to the jury, defects in the verdict sheet
are reviewed on appeal under the same 'unjust result' standard of
Rule 2:10-2 that governs errors in the jury charge." Ibid.
Here, we find no reversible error. The verdict sheet did not
give the jury a place to record a verdict for second-degree
18 A-4419-15T1
kidnapping. Defendant made no objection to that verdict sheet at
trial. Nevertheless, the jury was clearly instructed on the
elements of both first- and second-degree kidnapping. More
importantly, the verdict sheet listed the elements of first-degree
kidnapping and the jurors checked the "guilty" box on those
questions. Significantly, kidnapping is a second-degree crime if
defendant releases the victim unharmed and in a safe place prior
to his apprehension.
N.J.S.A 2C:13-1(c)(1). Here, there was
compelling evidence that defendant had left the victims tied up
on the charges when he was convicted of first-degree kidnapping.
Moreover, the verdict sheet also gave the jurors the option to
consider lesser included crimes if they did not find all of the
elements of first-degree kidnapping.
Defendant also argues that the error with the verdict sheet
was compounded when the jury asked a question concerning how to
designate a second-degree crime. Without specific reference to
the kidnapping charge, the jury submitted a question during
deliberations asking, "If applicable, how do we denote second-
degree on a charge in the verdict book?" The trial judge conferred
with counsel and then brought the jury in and explained:
All right, ladies and gentlemen, a
question came from the jury to the Court. I
will read it into the record.
19 A-4419-15T1
"If applicable, how do we denote second-
degree on a charge in the verdict book?"
And my answer to you is this. You answer
the questions as they are posed on the verdict
sheet. Okay? Each individual question as
posed.
You, the jury, are not to be concerned
about the degree of the crime. That is in the
Court's domain.
So, you answer the question as posed, as
we had talked about, you know, some of them,
you -- depending upon what your answer is to
one, you may go onto the next one, you may
skip the next one, as we discussed when I was
giving you my final instructions.
Before us, defendant contends that the combination of the
error on the verdict sheet relating to the kidnapping charges and
the trial court's response to the jury question precluded the jury
from finding defendant guilty of the lesser included offense of
second-degree kidnapping. We disagree. As already noted, the
trial court properly instructed the jury on both first- and second-
degree kidnapping. The verdict sheet, as it related to the
kidnapping charges, first asked the jury to determine whether
defendant was guilty of the elements of first-degree kidnapping.
The jury found defendant guilty of three counts of first-degree
kidnapping.
The verdict sheet also gave the jury the option to find
defendant not guilty of first-degree kidnapping and consider
20 A-4419-15T1
criminal restraint or false imprisonment. The jury found defendant
guilty of false imprisonment as it related to one of the victims.
Accordingly, the jury was following the court's correct
instructions. Moreover, the jury had been given a copy of the
court's charge, and they had the instructions on kidnapping in the
jury room during deliberations. Here, the error in the verdict
sheet was harmless.
4. The Use of "and/or" in the Jury Instructions and Verdict
Sheet
Defendant next argues that the trial court's instructions
concerning robbery, kidnapping, conspiracy to commit robbery, and
conspiracy to commit kidnapping were flawed because they used the
phrase "and/or," which could have allowed the jury to reach a non-
unanimous verdict. Defendant never objected to the use of the
phrase "and/or" and, accordingly, we review this issue for plain
error. R. 2:10-2.
A jury must reach a unanimous verdict in a criminal case.
N.J. Const. art. I, ¶ 9; R. 1:8-9. "The notion of unanimity
requires 'jurors to be in substantial agreement as to just what a
defendant did' before determining his or her guilt or innocence."
State v. Frisby,
174 N.J. 583, 596 (2002) (quoting United States
v. Gipson,
553 F.2d 453, 457 (5th Cir. 1997)).
Ordinarily, a general instruction on the
requirement of unanimity suffices to instruct
21 A-4419-15T1
the jury that it must be unanimous on whatever
specifications it finds to be the predicate
of a guilty verdict. There may be
circumstances in which it appears that a
genuine possibility of jury confusion exists
or that a conviction may occur as a result of
different jurors concluding that a defendant
committed conceptually distinct acts.
[State v. Parker,
124 N.J. 628, 641 (1991).]
A general instruction may not be sufficient where:
(1) a single crime could be proven by
different theories supported by different
evidence, and there is a reasonable likelihood
that all jurors will not unanimously agree
that the defendant's guilt was proven by the
same theory; (2) the underlying facts are very
complex; (3) the allegations of one count are
either contradictory or marginally related to
each other; (4) the indictment and proof at
trial varies; or (5) there is strong evidence
of jury confusion.
[State v. Cagno,
211 N.J. 488, 517 (2012)
(citing Frisby,
174 N.J. at 597).]
Our Supreme Court has instructed courts to apply a two-prong
test to determine whether a specific unanimity instruction is
required. Ibid. (citing Parker,
124 N.J. at 639). First, we ask
"whether the allegations in the [] count were contradictory or
only marginally related to each other . . . ." Parker,
124 N.J.
at 639. Second, we inquire "whether there was any tangible
indication of jury confusion." Ibid.
Applying this test, we find no reversible error concerning
the charges for robbery or kidnapping. The trial judge used the
22 A-4419-15T1
model jury instructions and did not use the phrase "and/or" in the
instructions themselves, except when quoting from the indictment.
Moreover, to the extent that the verdict sheet used that phrase,
it was not used in such a way that the jury could be confused.
The trial judge gave a clear instruction that they had to reach a
unanimous verdict, and there is nothing in the individual
instructions concerning the robbery or kidnapping charges that
would have confused the jury or could have led them to reach a
non-unanimous result.
The instruction concerning conspiracy to commit robbery
"and/or" kidnapping, however, was capable of producing a non-
unanimous jury verdict. In particular, the jury verdict sheet
only listed the charge of conspiracy to commit robbery "and/or"
kidnapping in the same question. Thus, the jurors were not asked
to consider separately whether defendant had engaged in a
conspiracy to commit robbery and whether he had engaged in a
conspiracy to commit kidnapping. By asking only one question,
some jurors may have been convinced that he was in a conspiracy
to commit robbery, while other jurors may have been convinced that
he was in a conspiracy to commit kidnapping. Accordingly, we
vacate defendant's convictions on counts 15 and 46 for conspiracy
to commit robbery "and/or" kidnapping. Those two counts are
remanded for further proceedings.
23 A-4419-15T1
5. The Sentences
Defendant challenges his sentences contending that the trial
court improperly ran certain sentences consecutively and imposed
excessive sentences. We disagree.
We review sentencing decisions for an abuse of discretion.
State v. Blackmon,
202 N.J. 283, 297 (2010). "The reviewing court
must not substitute its judgment for that of the sentencing court."
State v. Fuentes,
217 N.J. 57, 70 (2014) (citing State v.
O'Donnell,
117 N.J. 210, 215 (1989)). We will affirm a sentence
unless
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or
(3) "the application of the guidelines to the
facts of [the] case makes the sentence clearly
unreasonable so as to shock the judicial
conscience."
[Ibid. (quoting State v. Roth,
95 N.J. 334,
364-65 (1984)).]
Whether a sentence violates sentencing guidelines is a question
of law that we review de novo. State v. Robinson,
217 N.J. 594,
604 (2014).
Where a defendant receives multiple sentences of imprisonment
"for more than one offense . . . such multiple sentences shall run
24 A-4419-15T1
concurrently or consecutively as the court determines at the time
of sentence."
N.J.S.A. 2C:44-5(a). "There shall be no overall
outer limit on the cumulation of consecutive sentences for multiple
offenses." Ibid.
When deciding whether to impose consecutive or concurrent
sentences, trial courts should consider the factors set forth and
explained in State v. Yarbough,
100 N.J. 627, 643-44 (1985), cert.
denied,
475 U.S. 1014 (1986). The Yarbough factors focus upon
"the nature and number of offenses for which the defendant is
being sentenced, whether the offenses occurred at different times
or places, and whether they involve numerous or separate victims."
State v. Carey,
168 N.J. 413, 423 (2001).
Here, defendant was convicted of nineteen crimes related to
robberies and kidnappings involving multiple victims. As
previously noted, the trial court sentenced defendant to an
aggregate term of ninety-eight years in prison. In imposing the
sentences, the trial court provided a detailed analysis.
Accordingly, the judge analyzed each of the aggravating and
mitigating factors and explained the basis on which he found those
factors.
When imposing consecutive sentences, the judge discussed the
Yarbough factors and explained in detail the reasons for imposing
consecutive sentences. Accordingly, the trial court correctly
25 A-4419-15T1
applied the sentencing guidelines and law, and we discern no abuse
of discretion in the sentences that were imposed.
In summary, having reviewed all of defendant's arguments, we
affirm all of his convictions and sentences with the exception of
his convictions on counts 15 and 46 for conspiracy to commit
robbery "and/or" kidnapping. Accordingly, defendant's convictions
on counts 15 and 46 are vacated and remanded for further
proceedings, and the sentence imposed on count 15 is also vacated.
Affirmed in part, reversed in part, and remanded. We do not
retain jurisdiction.
26 A-4419-15T1
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