SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2131-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACOB LLERA,

Defendant-Appellant.

_______________________

Submitted May 17, 2021 – Decided August 25, 2021

Before Judges Mayer and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 17-03-0637.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Stefan Van Jura, Assistant Deputy Public 

Defender, of counsel and on the brief).

Jill S. Mayer, Acting Camden County Prosecutor, 

attorney for respondent (Jason Magid, Special Deputy 

Attorney General/Acting Assistant Prosecutor, of 

counsel and on the brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE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.
2 A-2131-18

PER CURIAM

Defendant, Jacob Llera, appeals from his jury trial convictions for murder, 

possession of a weapon for an unlawful purpose, and unlawful possession of a 

handgun. Defendant contends for the first time on appeal that the trial court 

erred by failing to provide jury instructions concerning eyewitness 

identifications, and by allowing the jury to view a recording of defendant's 

custodial interrogation that included a remark by the interrogating detective that 

a non-testifying witness had identified defendant as the shooter. Defendant also 

asserts the trial court erred in imposing sentence by failing to account for a new 

statutory mitigating factor and by imposing consecutive sentences on the murder 

and handgun possession convictions. After carefully reviewing the record in 

light of the arguments of the parties and applicable legal principles, we affirm 

the trial convictions. We also affirm the sentence imposed for murder. We are 

unable, however, to affirm the decision to impose consecutive sentences on the 

record before us because the trial court did not elaborate on the fairness of the 

overall sentence as required by the New Jersey Supreme Court's recent decision 

in State v. Torres, 246 N.J. 246 (2021). We therefore are constrained to remand 

for a new sentencing proceeding at which the trial court shall address whether 
3 A-2131-18

imposition of consecutive sentences is warranted considering the fairness of the 

overall sentence.

I.

Defendant was charged by indictment with first-degree murder, N.J.S.A. 

2C:11-3(a)(1) and (2); second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a 

handgun, N.J.S.A. 2C: 39-5(b). He was tried before a jury over the course of 

six days in October 2018. The jury returned a guilty verdict on all counts. 

In January 2019, the trial judge sentenced defendant on the murder 

conviction to a forty-year prison term, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. The judge merged the conviction for possession 

of a weapon for an unlawful purpose with the conviction for murder. On the 

conviction for unlawful possession of a handgun, the court imposed a sevenyear prison term with a forty-two-month period of parole ineligibility under the 

Graves Act, N.J.S.A. 2C:43-6(c), to be served consecutively to the NERA 

sentence imposed for murder. 

We briefly summarize the facts adduced at trial that are relevant to the 

issues raised on appeal. On September 8, 2015, at around 8:20 p.m., Camden 

County Police Department Officer Nicole Berry heard four or five gunshots 
4 A-2131-18

while she was on patrol at the intersection of Broadway and Stevens Street in 

Camden. As she exited her police vehicle, a man ran towards her and collapsed. 

The victim later was identified as Saadiq Coleman. Officer Berry called for an 

ambulance and began to render aid. Coleman, who was nineteen years old, later 

succumbed to gunshot wounds to his chest and thigh.

A Camden resident was walking with his son on Broadway when he heard 

the gunshots. He testified he saw a group of people running down Broadway, 

including a dark-skinned man with white pants and a darker-colored shirt. He

observed the man take off his shirt as he was running across Broadway.

Homicide Detective Michael Rhoads of the Camden County Prosecutor's 

Office arrived at the scene at about 8:40 p.m. He was unable to locate additional 

eyewitnesses. The detective collected video surveillance footage from Rowan 

Medical Center, a school, and nearby businesses. He pieced together clips from 

the surveillance recordings and provided video to the media to enlist the public's 

assistance in identifying potential suspects and witnesses. Surveillance footage 

depicting the actual shooting was not disseminated to the public. 

Defendant's sister, Leila Llera, contacted the police and identified herself 

as one of the individuals shown in the publicly disseminated surveillance video. 

She met with Detective Rhoads and provided a statement, which was 
5 A-2131-18

electronically recorded. Leila1 stated defendant was at a fast-food restaurant in 

the neighborhood and was wearing a black shirt and white pants. When the 

gunshots rang out, people scattered, including her brother. At first, Leila

claimed she did not see who fired the shots, but eventually informed Detective 

Rhoads she saw her brother shoot the victim several times.

At trial, Leila claimed she could not recall information about the incident 

she had related in her recorded statement. The trial court determined her 

memory lapses were feigned and allowed the video recording of her statement 

to be played for the jury.

Defendant's other sister, Niurka Suriel, also testified and confirmed that

Leila and defendant were depicted in the surveillance video.

On September 12, 2015—four days after the homicide—defendant called 

Detective Rhoads after being advised by his family that he appeared in the 

surveillance video that had been publicly disseminated. Detective Rhoads 

informed defendant there was a warrant for his arrest. During the telephone 

conversation, defendant stated that he had been wearing white pants and a blue 

shirt. He told the detective he would report to the prosecutor's office that 

1

 Because defendant and his sister have the same last name, we use her first 

name to avoid confusion. We mean no disrespect in doing so. 
6 A-2131-18

afternoon to turn himself in. Defendant never showed up. Four days later, 

defendant was arrested by U.S. Marshals in Philadelphia, Pennsylvania. 

Defendant agreed to answer questions and gave a statement to Detective 

Rhoads. The stationhouse interrogation was electronically recorded and was 

played at trial. Defendant stated he had a close relationship with the victim, 

explaining, "I know Saadiq. That's – that's – he know[s] my whole family. He

[is] related to me. That's my second cousin." When Detective Rhoads asked 

what defendant was wearing during the incident, defendant replied, "I had white 

pants on. I had white pants on and a black shirt." 

Defendant then recounted his version of the events leading up to the 

shooting. Defendant told Detective Rhoads he approached Coleman to purchase 

marijuana. Defendant was walking with an acquaintance, Siefuddiyn Holland. 

Defendant claimed Coleman handed the marijuana to defendant and then pushed 

him away, saying "later bro. Get up out of here." Defendant claimed he heard 

gunshots as he was being pushed away. As defendant was running, he observed 

"some chubby fat dude in all black. That's what he was wearing, all black. He 

came from like the bushes." When Detective Rhoads told defendant there are 

no bushes at that location, defendant claimed to be talking about figurative 

bushes, "[l]ike he came out of there like – he came out of nowhere and was 
7 A-2131-18

talking . . . like we knew each other." Defendant claimed this individual shot 

Coleman. 

The State at trial also played an audio recording of a call defendant made 

from the county jail on March 8, 2018. The other participant in the jailhouse 

call was not identified. During the conversation, defendant explained that his 

sister was the State's main witness against him. Defendant further stated he told 

his sister that if the family members do not show up, "they have to release me –

they have to let me go – cause' they don't have nobody – you know what I'm 

saying – I don't got nobody telling on me but my family." Defendant remarked 

that the video of the shooting did not clearly depict the shooter and the only 

thing that was "fucking him over" was his family. Defendant agreed with the 

unidentified male's statement that Leila was "in the way – she in the way big 

bro[,]" and explained that one of his "little homies" was about to go to the State 

Prison facility where Leila was incarcerated. Defendant stated he told his 

"homie" to tell his sister to retract the statement she had given to police, adding 

that if Leila "don't take it [her statement implicating defendant] back [the female 

"homie" is] gonna beat her up."

Defendant testified at trial in his own defense. He denied shooting 

Coleman and offered three potential shooters: an individual wearing all black 
8 A-2131-18

on a bike, a man wearing white plants and a blue shirt who had been walking 

with Coleman and Holland, and a third man wearing a white t-shirt and riding a 

bike. Defendant also testified Holland was in possession of a handgun and was 

mad about something.

On appeal, defendant raises the following contentions for our 

consideration:

POINT I

BECAUSE IDENTIFICATION WAS THE CENTRAL

CONTESTED ISSUE IN THE CASE, DEFENDANT

WAS DENIED HIS RIGHTS TO DUE PROCESS AND

A FAIR TRIAL BY THE TRIAL COURT'S FAILURE

TO PROVIDE ANY IDENTIFICATION

INSTRUCTION WHATSOEVER TO THE JURY. U.S.

CONST., AMENDS. V, VI, AND XIV; N.J. CONST.,

ART. I, PARS. 1, 9, AND 10 (not raised below)

POINT II

ADMISSION OF THE HEARSAY STATEMENT

THAT HOLLAND HAD IDENTIFIED DEFENDANT

AS THE SHOOTER DENIED DEFENDANT OF HIS

RIGHTS TO CONFRONTATION AND A FAIR

TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV;

N.J. CONST., ART. I, PARS. 1, 9, AND 10 (not raised 

below)

POINT III

THE MATTER SHOULD BE REMANDED FOR

RESENTENCING BECAUSE THE SENTENCING

COURT ERRED IN IMPOSING A CONSECUTIVE
9 A-2131-18

SENTENCE ON THE CONVICTION FOR

UNLAWFUL POSSESSION OF A WEAPON

Defendant submitted a pro se supplemental letter raising the following 

arguments:

POINT I

BECAUSE IDENTIFICATION WAS THE CENTRAL 

CONTESTED ISSUE IN THE CASE, DEFENDANT 

WAS DENIED HIS RIGHTS TO DUE PROCESS 

AND A FAIR TRIAL BY THE TRIAL COURT'S 

FAILURE TO PROVIDE ANY IDENTIFICATION 

INSTRUCTIONS WHATSOEVER TO THE JURY 

U.S. CONST., AMENDS. V, VI, AND XIV; N.J. 

CONST., ART. I, PARS. 1, 9, AND 10 (not raised 

below)

A. THE TRIAL COURT ERRED IN ALLOWING 

PREJUDICIAL TESTIMONY FROM 

DEFENDANT'S SISTER LEILA AFTER 

INFORMING INVESTIGATORS THAT HER 

STATEMENT [WAS] FALSE IN THE BEGINING 

[sic] AND SHE COULD NOT REMEMBER WHAT 

HAPPENED THE NIGHT OF THE INCIDENT 

B. THE TRIAL COURT ERRED IN ALLOWING THE 

ADMISSION OF THE HEARSAY STATEMENT 

THAT HOLLAND HAD IDENTIFIED 

DEFENDANT AS THE SHOOTER DENIED 

DEFENDANT OF HIS RIGHTS TO 

CONFRONTATION AND A FAIR TRIAL, U.S. 

CONST. AMENDS. V, VI, XIV; N.J. CONST., 

ART. 1, PARS. 1, 9, AND 10 (not raised below)
10 A-2131-18

II.

We first address defendant's contention that the trial court committed plain 

error by failing to sua sponte provide the model jury instruction relating to 

eyewitness identifications. "It is a well-settled principle that appropriate and 

proper jury charges are essential to a fair trial," and that a jury charge functions 

as a "'road map to guide the jury and without an appropriate charge a jury can 

take a wrong turn in its deliberations.'" State v. Savage, 172 N.J. 374, 387 

(2002) (quoting State v. Martin, 119 N.J. 2, 15 (1990)). "[A] request for jury 

instructions shall be granted when those instructions relate to 'essential and 

fundamental issues and those dealing with substantially material points.'" State 

v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003) (quoting State v. Green, 86 

N.J. 281, 290 (1981)). 

In this instance, defendant did not request an eyewitness identification 

instruction. When, as in this case, a defendant does not object to the charge, 

"there is a presumption that the charge was not error and was unlikely to 

prejudice the defendant's case." State v. Montalvo, 229 N.J. 300, 320 

(2017) (quoting State v. Singleton, 211 N.J. 157, 182 (2012)). However, the 

failure to provide the eyewitness identification instruction may constitute 
11 A-2131-18

reversible error even when that instruction is not requested. See State v. Cotto, 

182 N.J. 316, 326 (2005); Davis, 363 N.J. Super. at 561.

Defendant's argument, raised for the first time on appeal, presupposes that 

an eyewitness identification instruction was appropriate and necessary in this 

case. This argument fundamentally misconstrues the nature and purpose of that 

jury charge. In State v. Sanchez-Medina, our Supreme Court also addressed a 

"missing instruction on identification . . . for plain error." 231 N.J. 452, 468 

(2018). The Court began by tracing the development of the law on eyewitness 

identifications, noting that it had addressed this topic on a number of occasions 

in recent years. Id. at 466. Notably, in 2011, the Court in State v. Henderson

closely examined expert testimony and scientific studies concerning a number 

of variables that affect human memory. 208 N.J. 208 (2011). Chief Justice 

Rabner addressed the frailties of human perception and memory that can lead to 

misidentification, setting forth a comprehensive list of so-called system and 

estimator variables that affect the reliability of eyewitness identifications.2

 Id.

2

 System variables in eyewitness identification are those circumstances created 

or controlled by law enforcement, such as photo array procedures. They are 

distinguished from estimator variables over which law enforcement has no 

control such as lighting conditions, the amount of time the witness had to 

observe the offender, whether the witness's attention was focused on a weapon, 

and the degree of stress experienced by the witness. 
12 A-2131-18

at 261–72. Based on that body of scientific evidence, the Court directed that 

new jury instructions be developed. Id. at 298–99. The following year, the 

Court approved new model jury charges on eyewitness identification, which 

address various factors such as memory decay, stress, and the duration of the 

crime. Model Jury Charge (Criminal), "Identification: In-Court and Out-OfCourt Identifications" (rev. May 18, 2020).

In Sanchez-Medina, the Court reaffirmed that "[w]hen eyewitness 

identification is a 'key issue,' the trial court must instruct the jury how to assess 

the evidence—even if defendant does not request the charge." 231 N.J. at 466 

(citing State v. Cotto, 182 N.J. 316, 324 (2005)); see also Davis, 363 N.J. Super. 

at 561 (noting "as a matter of general procedure a model identification charge 

should be given in every case in which identification is a legitimate issue") 

(citing State v. Copling, 326 N.J. Super. 417, 434 (App. Div. 1999)). However, 

eyewitness identification within the meaning of Henderson and its progeny was 

not a key issue in this case. Defendant did not dispute that he was present at the 

crime scene when the fatal shots were fired. Defendant's argument—reflected 

in his own trial testimony—was that someone else fired. Accordingly, the key 

issue for the jury to decide was not whether Leila had misidentified her own 
13 A-2131-18

brother but rather whether she was truthful when she told Detective Rhoads she 

saw defendant shoot the victim multiple times.3

The eyewitness identification charge, drafted in accordance with 

Henderson, is designed to provide guidance to juries in gauging a witness's 

capacity to testify reliably that the defendant-at-bar is the particular person the 

eyewitness observed at the scene and time of the crime. Where the eyewitness 

is the defendant's sibling—as in this case—there simply is no significant risk 

the witness would misidentify the culprit within the meaning of Henderson. 

In these circumstances, the model identification charge explaining the risk 

of eyewitness misidentification would not have been helpful—and might even 

have been confusing—in contrast to the witness credibility jury instruction that 

was given to the jury. We thus conclude the failure to give the eyewitness 

identification jury charge was not error, much less plain error capable of 

producing an unjust result. R. 2:10-2; see also Cotto, 182 N.J. at 326 (noting 

3 We add the trial court did not abuse its discretion in admitting Leila's 

electronically recorded statement pursuant to N.J.R.E. 803(a) after finding that 

her lack of recollection at trial was feigned. See State v. Brown, 138 N.J. 481, 

541–46 (1994) (prior statement of a witness is admissible in a criminal trial as 

a prior inconsistent statement where the witness maintains he or she cannot 

recall incidents related in his or her earlier statement and the trial judge finds 

that the memory lapse was feigned). 
14 A-2131-18

although "[f]ailure to issue [an identification] instruction may constitute plain 

error," that "determination . . . depends on the strength and quality of the State's 

corroborative evidence") (internal citations omitted). 

III.

We turn next to defendant's contention that the trial court violated his 

Confrontation Clause rights by allowing the jury to view the unredacted 

stationhouse statement defendant gave to police following his arrest. At one 

point during the interrogation, Detective Rhoads stated that Holland told police 

that defendant was present at the scene and shot Coleman. We reproduce the 

pertinent portion of the recorded interrogation: 

Detective Rhoads: Okay. There was multiple people 

that identified you as shooting Saadiq.

Defendant: Like who? Let me know.

Detective Rhoads: You want to know?

Defendant: Yeah.

Detective Rhoads: Your sister for one. All right. This 

is real. I'm going to be real with you. All right. So be 

real with me. Your sister, Leila. All right. She 

identified you. She was out there. All right. This is 

how real it is, so I need for you to be honest with me 

right now.

Defendant: No, I didn't shoot that – I didn't do nothing 

like that.
15 A-2131-18

Detective Rhoads: Sir, everybody is a liar including the 

video?

Defendant: Huh?

Detective Rhoads: Your boy [Holland] put you there 

too.

Defendant: What do you mean?

Detective Rhoads: He put you there. He identified you 

as being right there shooting. Everybody is looking out 

for themselves. All right. They're not going down for 

this. You think they're going to put their neck out for 

you? Come on.

The record shows that in reality, Holland had not implicated defendant as 

the shooter. At the suppression hearing conducted on October 11, 2018—less 

than one week before the trial started—defense counsel established during the 

cross-examination of Detective Rhoads that while Holland had stated that 

defendant was present at the scene, he had not claimed that defendant was the 

shooter. We reproduce the pertinent portion of the suppression hearing crossexamination:

Defense counsel: So part of what you just said in that 

video recording to [defendant] about Mr. Holland was 

not correct. Right?

Detective Rhoads: In terms of what, counselor?
16 A-2131-18

Defense Counsel: You said that Mr. Holland identified 

[defendant] as being -- being there. You said that to 

[defendant]. Correct?

Detective Rhoads: Yes. He identified him being there. 

He didn’t identify him as the shooter.

Defense Counsel: In fact, he refused to identify – he 

said --

Detective Rhoads: Yeah. It’s understandable. He 

didn’t want to -- to identify his friend. I get it.

Defense counsel did not request the video recording of the interrogation 

be redacted, or that the jury be instructed not to consider Detective Rhoad's 

reference to Holland's statement as substantive evidence of defendant's 

complicity in the shooting. Defendant now argues for the first time on appeal 

the admission of Holland's hearsay statement violated defendant's Confrontation 

Clause rights because there was no opportunity for counsel to cross-examine 

Holland, who died before trial. 

We begin our analysis of this contention by acknowledging certain 

bedrock principles of our criminal justice system. The Sixth Amendment to the 

United States Constitution and Article I, Paragraph 10 of the New Jersey 

Constitution afford an accused the right "to be confronted with the witnesses 

against him." U.S. Const. amend. VI; N.J. Const. art. I, para. 10. That right "is 
17 A-2131-18

an essential attribute of the right to a fair trial, requiring that a defendant have a 

'fair opportunity to defend against the State's accusations.'" State v. Branch, 182 

N.J. 338, 348 (2005) (quoting State v. Garron, 177 N.J. 147, 169 (2003)).

Our Supreme Court in Branch held that "both the Confrontation Clause 

and the hearsay rule are violated when, at trial, a police officer conveys, directly 

or by inference, information from a non-testifying declarant to incriminate the 

defendant in the crime charged." 182 N.J. at 350 (citing State v. Bankston, 63 

N.J. 263, 268–69 (1973)). More recently, the Court in State v. Weaver explained 

that "[w]hen evidence is admitted that contravenes not only the hearsay rule but 

also a constitutional right, an appellate court must determine whether the error 

impacted the verdict." 219 N.J. 131, 154 (2014) (citing Chapman v. California, 

386 U.S. 18, 24 (1965)). "The standard has been phrased as requiring a 

reviewing court 'to declare a belief that [the error] was harmless beyond a 

reasonable doubt.'" Ibid. (alteration in original) (citing Chapman, 386 U.S. at 

24); see also Branch, 182 N.J. at 353 (applying the plain error standard where a 

defendant fails to object to erroneously admitted evidence by determining 

whether the evidence is "clearly capable of producing an unjust result"); State

v. Singh, 245 N.J. 1, 13 (2021) (reaffirming that an unchallenged error "'will be

disregarded unless a reasonable doubt has been raised whether the jury came to
18 A-2131-18

a result that it otherwise might not have reached'") (quoting State v. R.K., 220

N.J. 444, 456 (2015)).

In this instance, we believe Detective Rhoads's reference to statements 

attributed to Holland should have been redacted from the video recording before 

it was played to the jury. But because defendant's Confrontation Clause claim 

was not raised below, we must review the circumstances to determine if the 

admission of the unredacted recording impacted the verdict.

Importantly, this was not a situation where counsel failed to object to an 

unexpected and spontaneous hearsay statement. On the contrary, the record 

makes clear that counsel at trial was keenly aware of the content of the recorded 

interrogation, including the portion relating to hearsay statements attributed to 

Holland. Indeed, as we have noted, just days before trial, counsel at the 

suppression hearing focused on that hearsay statement and elicited from 

Detective Rhoads on cross-examination that Holland had not claimed that 

defendant was the shooter. 

Notwithstanding this knowledge, counsel did nothing to prevent the jury 

from hearing the detective's remark to defendant when the video-recorded 

interrogation was played at trial. Nor did counsel at trial cross-examine 
19 A-2131-18

Detective Rhoads to elicit for the jury that Holland had not identified defendant 

as the shooter.

It is thus reasonably apparent that counsel made a strategic decision to 

allow the jury to hear Holland's hearsay statement via Detective Rhoads' 

questioning during the custodial interrogation. We note defendant testified that 

Holland brought a gun to the scene and was angry. Defendant also suggested 

that one of Holland's associates may have fired the weapon. The notion that 

Holland would try to protect himself and his associate by deflecting blame onto 

defendant was consistent with defendant's trial testimony. It thus is 

understandable why counsel would strategically choose not to elicit from 

Detective Rhoads at trial that Holland in fact had not identified defendant as the 

shooter.

In State v. Bueso, we noted the plain error standard aims to "provide[] a 

strong incentive for counsel to interpose a timely objection, enabling the trial 

court to forestall or correct a potential error." 225 N.J. 193, 203 (2016). It also 

is well-settled that trial errors that "were induced, encouraged or acquiesced in 

or consented to by defense counsel ordinarily are not a basis for reversal on 

appeal . . . ." State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Harper, 
20 A-2131-18

128 N.J. Super. 270, 277 (App. Div. 1974)); see also State v. A.R., 213 N.J. 542, 

561 (2013) ("Mistakes at trial are subject to the invited-error doctrine."). 

We conclude that in this instance, counsel made a strategic election not to 

seek the redaction of Holland's hearsay statement and thus acquiesced in its 

disclosure to the jury. See Bueso, 225 N.J. at 203. In these circumstances, and 

considering the overall strength of the State's case, see State v. Chapland, 187 

N.J. 275, 289 (2006), we conclude the error in permitting the jury to hear the 

statement attributed to Holland was harmless beyond a reasonable doubt. See

Weaver, 219 N.J. at 154–55.

IV.

We turn next to defendant's contention that the trial court erred in 

imposing sentence. The scope of our review of sentencing determinations is 

limited and highly deferential. See State v. Pierce, 188 N.J. 155, 166–67 (2006); 

State v. Jarbath, 114 N.J. 394, 401 (1989).

A.

We first address defendant's argument we should remand for the 

sentencing court to retroactively apply a recent revision to the penal code. On 

October 19, 2021, the Governor signed legislation establishing a statutory 

mitigating factor, codified at N.J.S.A. 2C:44-1(b)(14), when the defendant was 
21 A-2131-18

under 26 years of age at the time of the commission of the offense. Here, 

defendant was twenty years old at the time of the murder. 

We need not decide whether the new sentencing provision must be applied 

retroactively because in this instance, the sentencing court accounted for 

defendant's youth as a non-statutory mitigating circumstance. Indeed, the court 

relied principally on defendant's age to impose a sentence below the midpoint 

of the sentencing range for murder. Cf. State v. Natale, 184 N.J. 458, 488 (2005) 

("We suspect that many, if not most, judges will pick the middle of the 

sentencing range as a logical starting point for the balancing process and decide 

that if the aggravating and mitigating factors are in equipoise, the midpoint will 

be an appropriate sentence. That would be one reasonable approach, but it is 

not compelled.")

Specifically, the sentencing court explained,

I've considered the defendant at the time was 20 years 

of age. He's 23 as he stands before me today. Based 

on in the interest of justice with this 23-year-old young 

man standing before me, age 20 at the time of this 

incident, I find in the interest of justice I will go below 

the 51-year midrange.

The court later reiterated,

I've gone below that midrange, taking into account that 

he had – he was 20 years of age, that he did not have an 

adult record. And I don’t know when he was released 
22 A-2131-18

on that four-year sentence he served. I don't know 

when he was released. I don't know if he was just 

released, but I've taken into account of his age and his 

lack of adult record. But I can't disregard that he has a 

history of criminal violence. But, yet, I went well 

below that midrange number. 

We are satisfied the sentencing judge carefully and thoroughly considered 

all relevant aggravating and mitigating circumstances—including defendant's 

youth—and ultimately imposed a sentence on defendant's murder conviction 

that was not "clearly unreasonable so as to shock the judicial conscience." See

State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State v. McGuire, 419 N.J. 

Super. 88, 158 (App. Div. 2011)). 

B.

We next address defendant's contention that the trial court erred in 

imposing consecutive sentences on the murder and handgun convictions. In 

State v. Yarbough, the Supreme Court embraced the foundational principle that 

"there can be no free crimes in a system for which the punishment shall fit the 

crime." 100 N.J. 627, 643 (1985). The Court listed relevant considerations in 

determining whether to impose consecutive sentences, including: 

(a) the crimes and their objectives were 

predominantly independent of each other;

(b) the crimes involved separate acts of violence 

or threats of violence;
23 A-2131-18

(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[.]

[Id. at 644.]

In State v. Cuff, the Court recognized "the Yarbough factors are 

qualitative, not quantitative; applying them involves more than merely counting 

the factors favoring each alternative outcome." 239 N.J. 321, 348 (2019); see 

also State v. Molina, 168 N.J. 436, 442–43 (2001) (affirming consecutive 

sentences although "the only factor that support[ed] consecutive sentences [was] 

the presence of multiple victims"); State v. Carey, 168 N.J. 413, 427–28 (2001) 

(holding that "a sentencing court may impose consecutive sentences even though 

a majority of the Yarbough factors support concurrent sentences").

In the present case, the sentencing court explained,

I note that there are multiple crimes here. There's 

weapon charges and there's a murder charge. I note that 

Yarbough talks about there shall be – there can be no 

free crimes in the system for which the punishment 

shall fit the crime.

I find that the possession of a weapon – unlawful 

possession of the weapon is a separate crime in and of 
24 A-2131-18

itself. The defendant is in possession of a loaded 

firearm on a city street in a community. In looking at 

the video, where there are several civilians in that area. 

He's in possession of a loaded firearm. There's no 

permit for the firearm.

I find that this crime is independent of the murder in 

and of itself. I find that for those reasons I do find that 

this should be a consecutive sentence.

We agree with the sentencing court that in the particular circumstances of 

this case, the criminal act of carrying a loaded handgun in public was 

independent of the murder and posed risks to others in addition to the murder 

victim. That finding by the sentencing court supports the decision to impose 

consecutive sentences.4

 See Molina, 168 N.J. at 442–43. But the required 

analysis does not stop there. In Torres, our Supreme Court recently5 explained:

Yarbough's second factor requires a sentencing court to 

place on the record its statement of reasons for the 

decision to impose consecutive sentences, which 

statement, we have directed, should focus 'on the 

fairness of the overall sentence, and the sentencing 

4

 As we have noted, the conviction for possession of a weapon for an unlawful 

purpose was properly merged with the conviction for murder because the 

unlawful purpose was to commit the homicide. 

5

 Torres was decided on May 11, 2021. The Supreme Court did not announce 

a new rule; thus, the principles set forth in the opinion clearly apply to the 

present sentencing proceeding. The Court emphasized in this regard, "[o]verall 

fairness has long been a necessary consideration to the imposition of consecutive 

versus concurrent sentencing." Torres, 246 N.J. at 274. 
25 A-2131-18

court should set forth in detail its reasons for 

concluding that a particular sentence is warranted.' 

[246 N.J. at 267–68 (quoting State v. Miller, 108 N.J. 

112, 122 (1987)).]

The Court further explained that the penal code's sentencing goals of 

uniformity and predictability "should not come at the expense of fairness and 

proportionality." Id. at 270. "Toward that end, the sentencing court's 

explanation of its evaluation of the fairness of the overall sentence is 'a necessary 

feature of any Yarbough analysis.'" Ibid. (citing Cuff, 239 N.J. at 352). 

The Court reaffirmed that "[a]ppellate courts employ the general shockthe-conscience standard for review of the exercise of sentencing discretion in 

the arena of consecutive-versus-concurrent sentencing." Id. at 272 (quoting 

State v. Roth, 95 N.J. 334, 364–65 (1984)). The Court nonetheless made clear 

that because the Legislature has yet to provide precise guidance to trial courts

in deciding whether to impose concurrent or consecutive sentences, "appellate 

review of lengthy[6] consecutive sentences is therefore the only check for 

6

 In Torres, the Court imposed consecutive thirty- and forty-year sentences on 

the defendant's convictions for separate robberies committed in different years. 

In the present case, the court imposed a forty-year NERA term with a thirtyfour-year period of parole ineligibility on the murder conviction and a sevenyear Graves Act term with a forty-two-month period of parole ineligibility on 

the handgun possession conviction. We do not read Torres to apply only where 
26 A-2131-18

pervading unfairness." Ibid. "But although the standard is deferential," the 

Court stressed, "that review is critical." Ibid. The Court added, "[t]o facilitate 

that vital review—and to eliminate any possibility of lingering doubt—we hold 

that an explanation for the overall fairness of a sentencing court is required . . . 

." Ibid.

The Court concluded in Torres that "the explanation of the overall fairness 

of the consecutive sentences imposed on [the defendant] was lacking," id. at 

270, prompting the Court to remand for resentencing. So too in the case before 

us, the record does not show that the sentencing court expressly considered the 

impact of the consecutive Graves Act sentence on the overall fairness of the 

sentence imposed. The sentencing court, we note, conducted a commendably 

thorough analysis of the pertinent aggravating and mitigating factors, carefully 

tailoring the sentence imposed on the murder conviction to account for those 

factors.7

 With respect to the consecutive-versus-concurrent decision, however, 

both sentences involve "lengthy" prison terms. Rather, the gravamen of Torres

is that a trial court must consider whether the arithmetic sum of consecutive 

sentences is fair and warranted, regardless whether that sum is composed of 

sentences of markedly different lengths as in this case.

7

 We note the trial court might have arrived at the same overall sentence—

measured by the aggregate period of parole ineligibility—by imposing a longer 

prison term on the murder conviction and a concurrent sentence on the handgun 
27 A-2131-18

the court focused entirely on the independent nature of the murder and gun 

possession offenses.8

 We therefore deem it necessary to remand the matter for 

the court to complete the Yarbough/Torres analysis and to make an explicit 

determination as to the fairness of the aggregate sentence, that is, the total 

amount of time defendant will remain in prison if the NERA and Graves Act 

sentences are served consecutively. We leave this analysis in the first instance 

to the trial court and offer no opinion on whether the overall sentence imposed 

at the original sentencing proceeding was unfair.

To the extent we have not addressed them, any remaining arguments 

raised in defendant's counseled brief or pro se letter lack sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed in part; vacated and remanded in part. We do not retain 

jurisdiction.

conviction. We do not envision that the court on remand will alter the sentence 

imposed on the murder conviction, which we affirm.

8

 The trial court explained, "I find, under Yarbough, that possession of that 

weapon was independent in and of itself of the murder and that's the basis for 

my consecutive sentence." (emphasis added).