SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2757-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE SMITH,

Defendant-Appellant.

_______________________

Argued November 2, 2020 – Decided February 12, 2021

Before Judges Messano and Hoffman.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment Nos. 17-08-

0873 and 17-08-0874.

Candance Caruthers, Assistant Deputy Public 

Defender, argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Candance 

Caruthers, of counsel and on the brief).

Catlin A. Davis, Deputy Attorney General, argued the 

cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Catlin A. Davis, of counsel and on 

the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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A-2757-18

PER CURIAM

Following the denial of his motion to suppress evidence, defendant Andre 

Smith pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 

2C:39-5(b)(1); second-degree certain persons not have weapons, N.J.S.A. 

2C:39-7(b)(1); and third-degree possession of marijuana with intent to 

distribute, N.J.S.A. 2C:35-5(b)(11). On July 20, 2018, the trial court sentenced 

defendant, imposing an aggregate prison term of thirteen years with an eightyear, nine-month period of parole ineligibility. Defendant now appeals the 

February 21, 2018 order denying his motion to suppress as well as the trial 

court's sentencing decision. We affirm. 

I.

In August 2017, a Middlesex County grand jury returned Indictment No.

17-08-0873, charging defendant with second-degree possession of a handgun, 

N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree possession of marijuana, 

N.J.S.A. 2C:35-10(a)(3) (count two); third-degree possession of marijuana with 

intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count 

three); second-degree possession of a firearm while in the course of committing 

a CDS offense, N.J.S.A. NC:39-4.1(a) (count four); second-degree unlawful 

possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count five); 
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A-2757-18

fourth-degree possession of hollow nose or dum-dum bullets, N.J.S.A. 2C:39-

3(f) (count six); and fourth-degree unlawful receipt or acquisition of handgun 

ammunition, N.J.S.A. 2C:58-3.3(b) (count seven). On the same day, the grand 

jury also returned Indictment No. 17-08-0874, which charged defendant with an 

eighth offense: second-degree certain persons not to have weapons or 

ammunition, N.J.S.A. 2C:39-7(b)(1) (count one). Thereafter, defendant filed a 

motion suppress to evidence.

At an evidentiary hearing on the motion, conducted on February 21, 2018, 

the State presented the testimony of one witness, Detective Badawy of the North 

Brunswick Police Department. At the time of the motion hearing, Detective 

Badawy had been a police officer for ten years, the past six on the North 

Brunswick force, and had participated in "multiple . . . narcotics trainings" that 

covered the detection of narcotics and narcotics transactions; in his career, he 

had made "[h]undreds" of narcotics-related arrests.

Detective Badawy recounted that on May 10, 2017, he and two other 

officers, Detectives Powell and Vitelli, were conducting surveillance in the 

parking lot of the Farrington Inn Motel (the motel). Detective Badawy described 

the motel as a high crime area, to which he was dispatched "all the time[.]" 

According to Detective Badawy, throughout his tenure in North Brunswick, he 
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personally had made between twenty-five and forty arrests at the motel, many 

of which were for possession of illegal drugs. He explained that some of these 

arrests were made after being dispatched in response to reported criminal 

activity, while others resulted from "proactive" police action, i.e. "just stopping 

cars that were in that [motel] or, you know, in that vicinity . . . for motor vehicle 

violations." He also testified that he did not have prior knowledge that defendant 

would be at the motel on the date of his arrest.

While surveilling the motel, Detective Badawy observed a dark-colored 

car enter the motel parking lot and an individual enter the car through the 

passenger side door after emerging from one of the motel's rooms. The 

individual remained in the car for about forty seconds before exiting the car and 

returning to his motel room. "Based on [his] training and experience of narcotics 

work[,]" Detective Badawy believed the conduct he observed "was indicative of 

a narcotics transaction." 

Detective Badawy then observed the vehicle exit the parking lot and 

proceed onto Route 130 South. The detectives followed the car, which 

immediately merged from the right-most lane across the middle lane to the leftmost lane without signaling. Based on this improper lane change, the detectives 
5

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signaled the car to pull over. Upon stopping the car, Detective Badawy noted 

the car was occupied only by its driver, who was later identified as defendant.

Detective Badawy testified that "immediately when [he] approached the 

window, [he] could detect the odor of raw marijuana emanating from inside the 

vehicle." When questioned about the "strong odor of raw marijuana," defendant 

attributed it to a tobacco cigar. Defendant cooperated when asked to step out of 

his car, and admitted "that he had an amount of marijuana in the vehicle" when 

questioned again about the source of the smell. 

Detectives Badawy and Powell then searched the interior of the car's 

passenger compartment. Detective Badawy discovered "a large amount [of 

marijuana] located in the center console," while Detective Powell found a loaded 

handgun under the driver's seat. Detective Badawy testified that after recovering 

this contraband from the car's passenger compartment, "[a]n additional amount 

of – another large amount of marijuana was recovered from the trunk inside of 

a backpack. THC oil was recovered in addition to ammunition." The officers 

placed defendant under arrest and conducted a subsequent search of his person, 

which, according to Detective Badawy, yielded "a large amount of cash, I 

believe $1,700."
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The motion judge found Detective Badawy's testimony credible and 

sufficient to establish the search of defendant's car was legal. Based on the 

totality of the circumstances, the judge determined the detectives had reasonable 

suspicion to conduct an investigative stop of defendant's car both upon 

witnessing the suspected drug transaction in the motel parking lot and upon 

witnessing defendant commit a traffic violation. The judge further concluded 

that the detectives had probable cause to search the car after Detective Badawy 

smelled raw marijuana coming from the vehicle and after defendant admitted

that "he did have a small amount of marijuana in the car." The judge posited 

that the detective's discovery of "a large amount of marijuana" and "a loaded 

gun with ammunition" in the car's passenger compartment "gave rise to 

continuing to search the automobile into the trunk" because: 

Once the car is searched and the objects of criminality 

are found, that being . . . the initial marijuana and a 

loaded gun in the car, that allows, based upon case law, 

the officers to search the trunk in light of there being 

additional criminality possibly located in the trunk. 

The motion judge thus denied defendant's motion to suppress.

Consequently, on May 21, 2018, defendant pled guilty to counts one and 

three of Indictment No. 17-08-0873 (second-degree unlawful possession of a 

handgun and third-degree possession of marijuana with intent to distribute) and 
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the sole count of Indictment No. 17-08-0874 (second-degree certain persons not 

have weapons). In exchange for defendant's plea, the State agreed to dismiss 

the remaining charges and recommend the following sentence: a seven-year 

prison term subject to a forty-two-month period of parole ineligibility for the 

handgun charge, a concurrent extended term of eight years subject to a fortyfive month period of parole ineligibility for the possession of marijuana with 

intent to distribute charge, and a consecutive five-year term without parole for 

the certain persons charge. As part of the plea agreement, the State agreed 

defendant could oppose the State's motion for an extended term and argue for 

all three sentences to run concurrently; at the June 3, 2018 sentencing hearing, 

the judge considered and rejected these arguments. The judge found aggravating 

factors three, six, and nine applied, and that no mitigating factors applied. In 

accordance with the State's recommendations, the judge imposed an aggregate 

sentence of thirteen years, with an eight-year, nine-month period of parole 

ineligibility. 

This appeal followed, with defendant raising the following arguments: 

POINT I

THE TRIAL COURT ERRED IN DENYING THE 

MOTION TO SUPPRESS BECAUSE THE 

OFFICER’S PROBABLE CAUSE TO SEARCH 

DEFENDANT’S CAR DID NOT ARISE FROM 
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UNFORESEEABLE AND SPONTANEOUS 

CIRCUMSTANCES. ALTERNATIVELY, THE 

SEARCH OF THE TRUNK WAS UNREASONABLE. 

POINT II

DEFENDANT’S SENTENCE IS EXCESSIVE 

BECAUSE THE TRIAL COURT FAILED TO 

CONDUCT A YARBOUGH ANALYSIS, ERRED IN 

ITS FINDING AND WEIGHING OF 

AGGRAVATING AND MITIGATING FACTORS, 

AND INCORRECTLY BELIEVED IT WAS BOUND 

BY THE PROSECUTOR’S SENTENCING 

RECOMMENDATION.

II.

When reviewing a trial court's ruling on a motion to suppress evidence, 

we "must uphold the factual findings underlying the trial court's decision so long 

as the findings are supported by sufficient credible evidence in the record." State 

v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). Even if we 

may have reached a different conclusion, we give deference to the factual 

findings of the trial judge who was "substantially influenced by his opportunity 

to hear and see the witnesses and to have the 'feel' of the case." Id. at 244; see 

also State v. Gonzales, 227 N.J. 77, 101 (2016) (applying the same review 

standard). However, we review the trial court's conclusions of law de novo. 

Elders, 192 N.J. at 252-53.
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It is well established that to comply with the federal and New Jersey 

Constitutions, law enforcement officials generally must obtain a warrant before 

conducting a search of the person or private property of an individual, unless a 

recognized exception to the warrant requirement applies. State v. Witt, 223 N.J. 

409, 422 (2015). One of those recognized exceptions is the so-called 

"automobile exception." Ibid.

The search in this case, which occurred in 2017, is governed by our 

Supreme Court's seminal 2015 opinion in Witt, which "readopted a bright-line 

rule" for New Jersey's automobile exception to the warrant requirement.

1

 State 

v. Rodriguez, 459 N.J. Super. 13, 24 (App. Div. 2019) (discussing Witt, 223 N.J. 

at 444-46). Pursuant to Witt, police officers may conduct "warrantless on-thescene searches of motor vehicles in situations where: (1) the police have 

probable cause to believe the vehicle contains evidence of a criminal offense; 

and (2) the circumstances giving rise to probable cause are unforeseeable and 

1

 In Witt, 223 N.J. at 447-48, the Court abandoned the "pure exigentcircumstances requirement" it had added to the constitutional standard in State 

v. Pena-Flores, 198 N.J. 6 (2009), and State v. Cooke, 163 N.J. 657 (2000), 

finding that more narrow construction of the automobile exception to be 

"unsound in principle and unworkable in practice[.]" Witt, 223 N.J. at 415, 447. 

The Witt Court returned to the standard set forth in State v. Alston, 88 N.J. 211 

(1981). Witt, 223 N.J. at 447. 
10 A-2757-18

spontaneous." Rodriguez, 459 N.J. Super. at 22 (citing Witt, 223 N.J. at 447-

48). 

Defendant concedes that upon smelling the odor of marijuana emanating 

from his car, Detective Badawy had probable cause to believe the passenger 

compartment contained contraband. However, defendant argues that the 

circumstances giving rise to the probable cause were not unforeseeable and 

spontaneous, and therefore, the warrantless search of defendant's car does not 

fit within the automobile exception. 

Specifically, defendant contends Witt's unforeseeable and spontaneous 

requirement limits the automobile exception's application to situations where "a

chance encounter between the defendants and the police produced suspicion that 

the defendants’ cars contained contraband," and not where probable cause arose 

"from prior monitoring or suspicion." Based on his interpretation of Witt, 

defendant argues probable cause did not develop spontaneously because the 

detectives had reasonable suspicion to perform an investigative stop when they 

observed defendant engage in a suspected drug transaction in the motel parking 

lot, yet they did not pull him over until they witnessed him commit a traffic 

violation. Defendant contends the detectives pulling him over ostensibly for a 

traffic violation was not a chance encounter, but rather a pretext to stop and 
11 A-2757-18

search a person they already suspected of wrongdoing. Defendant argues the 

detectives could have stopped him in the motel parking lot; when they chose not 

to stop him in the parking lot, they were required to obtain a warrant to search 

his car. 

We reject defendant's arguments. Witt's unforeseeable and spontaneous 

requirement merely requires police secure a warrant to search a car "when it is 

practicable to do so." Witt, 223 N.J. at 449. As explained in Witt, "the inherent 

mobility of the vehicle" is one of the rationales for the automobile exception,

recognizing that "'it [may] not [be] practicable to secure a warrant' given that 

'the vehicle [can be] quickly moved out of the locality or jurisdiction."' Id. at 

422 (quoting Caroll v. United States, 267 U.S. 132, 153 (1925)). However, when 

the probable cause over the vehicle is not connected to or threatened by the 

vehicle's inherent mobility, police must secure a warrant to find and search the 

car. In other words, police may "not sit on probable cause and later conduct a 

warrantless search, for then the inherent mobility of the vehicle would have no 

connection with a police officer not procuring a warrant." Id. at 432. Thus, the 

unforeseeable and spontaneous requirement "ensure[s] that police officers who 

possess[] probable cause well in advance of an automobile search [seek] a 

warrant." Id. at 431. 
12 A-2757-18

Here, the detectives did not have probable cause in advance of 

encountering defendant, as they had no knowledge or suspicion of him before 

observing him at the motel. Rather, probable cause arose after the detectives 

"kept an eye on" a vehicle that aroused their suspicions and pulled over the 

vehicle when it was clear they had reasonable suspicion to do so. While 

stationed in the motel parking lot, the detectives first observed defendant engage 

in behavior that "was indicative of a narcotics transaction[,]" though they did 

not actually observe an exchange occur. Defendant drove off soon thereafter 

and committed a traffic violation while exiting the motel parking lot, which led 

the detectives to pull over his vehicle. The probable cause to search defendant's 

car arose spontaneously during this investigative stop when Detective Badawy 

smelled marijuana emanating from defendant's car. 

It is clear that it would not have been practicable for the detectives to seek 

a warrant upon observing conduct that resembled a drug transaction because of 

the risk the vehicle would be driven away and its contraband removed. 

Moreover, a warrant would not have issued at that point because detectives had 

reasonable suspicion, but not probable cause to believe defendant's car contained 

criminal contraband. Because the probable cause to search defendant's car arose 

spontaneously and unforeseeably during the valid traffic stop that followed, the 
13 A-2757-18

motion judge did not err in finding the search comported with the requirements 

of the automobile exception. 

In the alternative, defendant argues that "even if the search of the car were 

permissible, extending the search to the trunk of the car was unlawful because 

there was no probable cause to support a reasonable belief that the trunk 

contained contraband." We disagree. 

The automobile exception applied here because the smell of marijuana 

emanating from defendant's car furnished Detective Badawy with probable 

cause to believe the car contained contraband, and, as previously noted, the 

probable cause developed spontaneously. See State v. Walker, 213 N.J. 281, 

290 (2013) ("New Jersey courts have [long] recognized that the smell of 

marijuana itself constitutes probable cause that a criminal offense ha[s] been 

committed and that additional contraband might be present.") (second alteration 

in original) (quoting State v. Nishina, 175 N.J. 502, 515-16 (2003)) (internal 

quotation marks omitted). 

However, "[a] police officer must not only have probable cause to believe 

that the vehicle is carrying contraband but the search must be reasonable in 

scope." State v. Patino, 83 N.J. 1, 10 (1980). In that regard, "[i]t is widely 

recognized that a search, although validly initiated, may become unreasonable 
14 A-2757-18

because of its intolerable intensity and scope." Id. at 10-11 (citing Terry v. Ohio, 

392 U.S. 1, 19 (1968)). Thus, "the scope of the search must be 'strictly tied to 

and justified by' the circumstances which rendered its initiation permissible." 

Terry, 392 U.S. at 19 (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967) 

(Fortas, J., concurring)). In other words, "[t]he scope of a warrantless search of 

an automobile is defined by the object of the search and the places where there 

is probable cause to believe that it may be found." State v. Esteves, 93 N.J. 498, 

507 (1983). In order to establish probable cause to conduct a search, the State 

must show from the totality of the circumstances there is "a fair probability that 

contraband or evidence of a crime will be found in a particular place." State v. 

Chippero, 201 N.J. 14, 28 (2009) (quoting United States v. Jones, 994 F.2d 1051, 

1056 (3d Cir. 1993)). 

We are satisfied that probable cause existed for the detectives to extend 

their search of defendant's car to the trunk. The totality of the circumstances 

suggest a search of the entire car was appropriate: there was a strong odor of 

marijuana emanating from car, and defendant admitted that the car contained 

marijuana but failed to disclose it contained weaponry. When the detectives 

discovered the loaded handgun in the car's passenger compartment, they had 
15 A-2757-18

reason to suspect there was contraband hidden elsewhere in the car that 

defendant failed to disclose. 

Additionally, when the detectives discovered the loaded handgun, they 

had yet to place defendant under arrest. There arose the potential danger of 

defendant accessing the trunk to retrieve another undisclosed weapon and using 

it against the detectives. Thus, the police officers' concern for their personal 

safety further permitted the search of the trunk. See State v. Hammer, 346 N.J. 

Super. 359, 367-71 (App. Div. 2001) (finding the warrantless search of a 

vehicle's trunk permissible where police observed hollow bullets fall from the 

driver's coat, which "immediately created a reasonable belief that the occupants 

may possess dangerous weapons or that such weapons may be concealed in the 

car."). 

The detectives' search of defendant's car was proper in initiation and 

scope. We therefore find no error in the motion judge's denial of defendant's 

motion suppress. 

III.

Defendant also asserts he received an excessive sentence. "Appellate 

courts review sentencing determinations in accordance with a deferential 
16 A-2757-18

standard." State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence must be 

affirmed, 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. (alteration in original) (quoting State v. Roth, 95 

N.J. 334, 364-65 (1984)).]

When determining a sentencing term, a trial court must identify whether 

any of the aggravating factors enumerated in N.J.S.A. 2C:44-1(a) or the 

mitigating factors in N.J.S.A. 2C:44-1(b) apply, and then balance the applicable 

factors. Id. at 72. The relevant factors must then be "qualitatively addressed 

and assigned appropriate weight in a case-specific balancing process." Id. at 72-

73 (citing State v. Kruse, 105 N.J. 354, 363 (1987)). The court must also "state 

reasons for imposing such sentence including . . . the factual basis supporting a 

finding of particular aggravating or mitigating factors affecting sentence[.]" R.

3:21-4(g).

We "may not substitute [our] judgment for that of the trial court." State 

v. Natale, 184 N.J. 458, 489 (2005) (quoting State v. Evers, 175 N.J. 355, 386 

(2003)). Thus, we must affirm the defendant's sentence, even if we would have 
17 A-2757-18

arrived at a different result, as long as the trial court properly identified and 

balanced the aggravating and mitigating factors. Ibid.

The sentencing judge found the following aggravating factors applied: 

three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 

2C:44-1(a)(3); six, "[t]he extent of the defendant’s prior criminal record and the 

seriousness of the offenses of which the defendant has been convicted," N.J.S.A. 

2C:44-1(a)(6); and nine, "[t]he need for deterring the defendant and others from 

violating the law," N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating 

factors applied. 

Defendant argues the sentencing judge failed to state the reasons for 

imposing the aggravating factors and instead "simply recited" the factors 

applied, "without adequately explaining the basis for [his] findings." Defendant 

likewise contends the three aggravating factors lacked factual support in the 

record. Further, defendant argues the sentencing judge erred in not finding 

mitigating factor eleven. These arguments lack merit. 

Before finding and applying the aggravating and mitigating factors, the 

judge detailed defendant's criminal history at length, which included numerous 

convictions for indictable and municipal offenses. The judge noted that some 

of these prior felonies were drug distribution and gun offenses, for which 
18 A-2757-18

defendant had spent time on probation, in jail, and in prison. Additionally, 

defendant "had the benefit of a number of programs over the years" related to 

his history of substance abuse. "[B]ased on . . . particularly his criminal 

history[,]" the judge found the three aggravating factors applied. 

We find no basis to disturb this conclusion. Defendant's prior indictable 

convictions, many of which were similar to the convictions under appeal here, 

and his failure to reform his behavior despite escalating consequences, establish 

the risk that defendant will commit another offense, that defendant has an

extensive criminal record of serious offenses, and that deterring defendant from 

further criminality is necessary. The judge's recitation of defendant's criminal 

history is consistent with the presentence report contained within the record, 

which indicated defendant had six municipal convictions, four indictable

convictions, two probation violations, and participated in substance abuse 

treatment while incarcerated. Therefore, the sentencing judge's application of 

aggravating factors three, six, and nine was based on sufficient evidence in the 

record. 

Defendant's argument regarding mitigating factor eleven also fails. 

Defendant did not explicitly invoke mitigating factor eleven during the

sentencing hearing, but after making arguments about mitigating factors eight 
19 A-2757-18

and nine, defendant's attorney stated she would "leave the remaining arguments 

to my client and his family members." Defendant's mother and sister-in-law as 

well as defendant himself then testified that his imprisonment would facilitate 

hardship on defendant's children and family. The sentencing judge 

acknowledged these statements when they were made but made no reference to 

them when finding no mitigating factors applied. 

Our Supreme Court has stated that "mitigating factors that are suggested 

in the record, or are called to the court's attention, ordinarily should be 

considered and either embraced or rejected on the record." State v. Blackmon, 

202 N.J. 283, 297 (2010) (citing State v. Dalziel, 182 N.J. 494, 504-05 (2005)). 

Indeed, "where mitigating factors are amply based in the record before the 

sentencing judge, they must be found." Dalziel, 182 N.J. at 504. 

Mitigating factor eleven applies where "imprisonment of the defendant 

would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-

1(b)(11). However, our Supreme Court has made clear that the mere fact that a 

defendant has children does not require a trial court to find mitigating factor 

eleven. Dalziel, 182 N.J. at 505. Instead, a defendant must demonstrate that the 

children are dependents who will suffer an excessive hardship, i.e. adverse 

circumstances "different in nature than the suffering unfortunately inflicted 
20 A-2757-18

upon all young children whose parents are incarcerated." State v. Locane, 454 

N.J. Super. 98, 129 (App. Div. 2018). 

While the statements of defendant and his family members reasonably 

called aggravating factor eleven to the sentencing judge's attention, he did not 

err in declining to find and apply it. Neither the statements of defendant's family 

nor any other evidence in the record established that defendant's family would 

suffer a greater hardship than other families with incarcerated members. 

Defendant also argues "a remand is required because the sentencing 

[judge] incorrectly believed that [he] was bound to adhere to the terms set forth 

in the plea agreement[,]" having stated during the sentencing hearing, "my hands 

are really tied, aren't they?" and "what discretion do I have in this case to do

anything but follow the plea?" While defense counsel explained the judge could 

sentence defendant to concurrent terms rather than the recommended 

consecutive sentences, defendant asserts the judge was never made aware that 

he could impose a lesser sentence than the plea stipulated, the statutory 

minimum being five years. 

This argument lacks merit. While it is true that sentencing courts are not 

bound to the sentencing recommendations agreed to in plea agreements, State v. 

Kovack, 91 N.J. 486, 484 (1982), defense counsel did not argue for a shorter 
21 A-2757-18

sentence, beyond requesting concurrent terms, and the judge's statements do not 

indicate he failed to understand his ultimate discretion to sentence defendant 

within the statutory range. Sentencing defendant in accordance with the plea 

agreement did not violate the guidelines nor does it shock the judicial 

conscience. We discern no error from the judge's comments. When viewed in 

context, the cited comments reflect the judge's assessment that defendant was 

"looking for less," notwithstanding the fact that his "excellent attorney" had 

"zealously advocated on his behalf," and already "negotiated a very favorable" 

plea agreement. The judge further noted, "If [defendant] had gone to trial and 

if he had been convicted . . . he was facing far more prison time than this plea 

contemplates."

Finally, defendant argues a remand for resentencing is in order, 

contending the sentencing judge failed to conduct a proper Yarbough2analysis

before imposing a consecutive term on his "certain persons" conviction. We 

disagree.

While sentencing courts must provide a separate statement of reasons for 

imposing consecutive sentences or risk a remand for resentencing, State v. 

2

 State v. Yarbough, 100 N.J. 627 (1985). 
22 A-2757-18

Miller, 108 N.J. 112, 122 (1987), we may affirm a consecutive sentence "where 

the facts and circumstances leave little doubt as to the propriety of the sentence 

imposed." State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div. 2003). Thus, a 

sentence need not be modified or remanded if it is not "clearly mistaken." Id. at 

98 (quoting State v. Kromphold, 162 N.J. 345, 355 (2000)).

In Yarbough, our Supreme Court set forth the factors to be considered 

when deciding whether to impose consecutive or concurrent sentences. The 

Yarbough factors essentially 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) (quoting State v. Baylass, 

114 N.J. 169, 180 (1989)). However, "[t]he Yarbough guideline that provides 

the clearest guidance to sentencing courts faced with a choice between 

concurrent and consecutive sentences . . . focuses on the 'facts relating to the 

crimes.'" Carey, 168 N.J. at 423 (quoting State v. Rogers, 124 N.J. 113, 121 

(1991)).

As the State argued at defendant's sentencing hearing, "[P]er Yarbough, 

the certain persons offense is separate and discrete from the other offenses . . . . 

[H]e knew that he had no business having a gun, period, given his prior 
23 A-2757-18

convictions . . . . [T]his is an appropriate consecutive sentence. There are no 

free crimes." The State further noted," [T]he gun was found underneath the seat 

. . . . [H]e's a danger to the community, riding around with a loaded gun in a car 

where it's easily accessible to him."

Addressing the certain persons offense, the judge noted, "[T]his is the 

second time defendant[ has] been arrested with [a firearm] and convicted . . . of 

a firearms offense . . . . [T]he firearm was in his . . . possession during the course

. . . of a drug offense." The judge further explained, "The reason it's consecutive 

is because . . . this particular offense, in light of defendant's criminal history, 

presents . . . a significant threat to the community and the protection of the 

community warrants a longer sentence."

In this case, the reasons for consecutive sentences, in full accordance with 

the plea agreement, are self-evident. In addition to the drug offense, defendant 

pled guilty to two distinct crimes, second-degree unlawful possession of a 

handgun and second-degree certain persons not have weapons. Imposition of 

consecutive sentences was appropriate. Defendant received a prison sentence 

that was less than one-half of his maximum exposure. Defendant cannot 

legitimately complain that the sentence was excessive or that he received a 
24 A-2757-18

sentence other than that which he negotiated. We discern no basis to disturb 

defendant's sentence.

Affirmed.