RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5901-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCOS R. BLANDINO a/k/a

MARCOS RAFAEL BLANDINO,

Defendant-Appellant.

Submitted October 12, 2021 – Decided November 24, 2021

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 17-08-0553.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Richard Sparaco, Designated Counsel, on the 

brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Erin M. Campbell, Assistant Prosecutor, 

on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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-5901-17

Tried to a jury, defendant Marcos R. Blandino was convicted of forcibly 

entering a stranger's apartment in Hoboken around 6:00 p.m. on Sunday, April 

23, 2017, and groping her against her will. Following the jury's guilty verdict 

on third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), as a 

lesser-included offense of first-degree aggravated sexual assault, N.J.S.A. 

2C:14-2(a)(3) (counts one and two), and second-degree burglary, N.J.S.A. 

2C:18-2(a)(1) (count three), defendant was sentenced to an aggregate fifteenyear prison term. The trial judge imposed concurrent five-year prison terms on 

the sexual contact offenses to be served prior to a consecutive ten-year prison 

term on the burglary conviction. Defendant's sentence on the burglary 

conviction, only, is subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

During the ten-day trial, the State presented the testimony of fourteen 

witnesses, including the victim, K.O. (Katrina),1and her two roommates, who 

found Katrina curled in a fetal position after the attack. Surveillance video 

footage captured defendant's minivan traveling down Katrina's block as she 

1

 We use initials to protect the privacy of the victim and pseudonyms for ease 

of reference. See R. 1:38-3(c)(12). 
3

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walked toward her apartment building; Katrina entering the building; and 

defendant following moments later. 

Katrina told the jury she did not observe defendant until he was standing 

next to her outside her apartment door. As she opened the door, defendant 

pushed Katrina into the apartment, causing her to fall to the floor. Defendant 

pulled down Katrina's pants, held her down, and touched her vagina with his 

finger and penis. Katrina kicked and screamed, and eventually defendant left. 

According to the surveillance video, defendant exited the apartment 

building five minutes after he entered. Police reviewed the surveillance video 

and issued a "be on the lookout" (BOLO) advisory for defendant's minivan. The 

following Sunday, Hoboken police stopped defendant, while he was driving the 

minivan, which matched the BOLO description. 

Defendant was not under arrest, but he waived his Miranda2rights and 

voluntarily agreed to give a statement to members of the Hudson County 

Prosecutor's Office (HCPO). Police told defendant they were investigating 

"something" that had occurred the previous week. Acknowledging he had been 

in Hoboken on April 23, defendant claimed he only made one stop at the "Hindu 

store," which he "always" patronized when his Lyft job brought him to the area. 

2

 See Miranda v. Arizona, 384 U.S. 436 (1966).
4

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But shortly after defendant was shown photographs of his minivan from the 

surveillance video, defendant invoked his right to counsel and all questioning 

about the incident ceased. 

At trial, the State introduced defendant's video-recorded statement, which 

was made in defendant's primary language of Spanish. Accordingly, the trial 

judge provided English transcripts to the jury as listening aids when the 

statement was played in open court. Because the transcripts were not admitted 

in evidence, the judge did not provide them to the jury during deliberations. 

Defendant testified on his own behalf, denying Katrina's account. Instead, 

defendant claimed Katrina – about twenty years his junior and someone he had 

not previously met – invited him into her home and attempted to have sex with 

him. Defendant said he returned Katrina's kiss but froze when "she put her 

vagina in [his] face." He left soon thereafter. 

Defendant now appeals, arguing: 

POINT I

DEFENDANT'S CONVICTION FOR SECONDDEGREE BURGLARY MUST BE REVERSED.

A. The Trial Court's Instructions to the Jury Directed a 

Verdict on an Element of Burglary and Thereby 

Improperly Relieved the State of its Constitutional 

Burden of Proving Guilt Beyond a Reasonable Doubt. 

(Not raised below)
5

A-5901-17

B. After the Jury Verdict the Trial Court Sua Sponte 

Should Have Exercised Its Discretion Pursuant to 

R[ule] 3:18-2 by Entering a Judgment of Acquittal. 

(Not raised below)

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A 

FAIR TRIAL DUE TO THE COURT'S FAILURE TO 

PROPERLY WARN THE JURY TO DISREGARD 

DEFENDANT'S ASSERTION OF HIS RIGHT TO 

REMAIN SILENT. 

(Not raised below)

POINT III

[]DEFENDANT WAS DENIED THE RIGHT TO A 

FAIR TRIAL BECAUSE THE JURY CONSIDERED 

HIS PRIOR STATEMENT, WHICH WAS PLAYED 

IN OPEN COURT IN SPANISH WITH AN ENGLISH 

TRANSCRIPT, BUT THE ENGLISH 

TRANSLATION WAS NOT ADMITTED INTO 

EVIDENCE. 

(Not raised below)

POINT IV

THE SENTENCE OF THE MAXIMUM TERMS IN 

PRISON ON EACH COUNT AND RESULTING IN 

FIFTEEN YEARS IN PRISON WITH [AN] EIGHT 

AND ONE-HALF[-]YEAR[] PERIOD OF PAROLE 

INELIGIBILTY WAS EXCESSIVE BECAUSE THE 

COURT ERRED IN APPLYING AGGRAVATING 

SENTENCING FACTORS ONE AND TWO[, N.J.S.A. 

2C:44-1(a)(1) and (2)].
6

A-5901-17

For the reasons that follow, we affirm defendant's convictions and remand 

for resentencing. 

I.

Initially, we consider the arguments asserted in point II. For the first time 

on appeal, defendant argues the trial judge committed reversible error by 

including the invocation of defendant's right to counsel when his statement to 

police was introduced in evidence. Acknowledging the final jury charge 

included a limiting instruction regarding defendant's invocation, he argues the 

instruction should have accompanied the offending statement when it was 

received in evidence. Because defendant neither objected to admission of the 

statement nor requested a cautionary instruction at trial, we review his newlyminted challenges through the prism of the plain error standard. R. 2:10-2. 

Defendant invoked his right to counsel after police presented photographs 

from the surveillance video depicting his minivan outside Katrina's apartment 

building, and police told defendant the victim's description of her assailant was 

"precisely a description of [him]." At issue is the following excerpt of 

defendant's exchange with police: 

LIEUTENANT: []It's important that you provide an 

explanation here regarding what happened. It's the only 

thing I'm asking you sir. We already know what 

happened, so. I wish you can go back one week, years, 
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months, and we would be able to change many things, 

but we can't. We can't but already [sic] what happened, 

happened and we have to see forward, towards the 

future, okay and its important. The only thing that we 

ask you is that you say the truth that's all. Explain to 

me what happened; tell me. 

DEFENDANT: For me to explain anything I would 

like to come with an attorney. I don't . . . I don't have 

the desire to explain anything that may have happened 

with him [sic] you can ask me what you want to ask me. 

Obviously, it's my vehicle; I was there because it's my 

vehicle. I don't know what that person may have said. 

I don't want to say anything.

At the conclusion of the court's final instructions to the jury, at request of 

the State, the judge issued a limiting instruction: 

You've heard the defendant invoked his right to 

an attorney at the end of his statement to the 

prosecutor's office on April 30th. You also heard at the 

beginning of the statement the detective explained to 

him that he had a right to an attorney, the right to remain 

silent, and other rights. 

These are his rights as guaranteed by the United 

States and New Jersey State Constitutions. You cannot 

draw any negative inference from the defendant's 

exercise of his constitutional rights. 

In State v. Feaster, 156 N.J. 1, 73-77 (1998), our Supreme Court 

considered whether a jury should be permitted to hear the defendant invoke his 

right to silence. As a general principle, the Court held trial judges "should 

endeavor to excise any reference to a criminal defendant's invocation of his right 
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to counsel." Id. at 75. Nonetheless, the Court found permissible the admission 

of such statement where it "is essential to the complete presentation of the 

witness's testimony and its omission would be likely to mislead or confuse the 

jury." Id. at 76. In that situation, the trial court must give a cautionary 

instruction to guard against any impermissible inferences. Ibid. 

However, "a trial court's failure to follow the Feaster stricture of excision 

or a cautionary instruction does not necessarily equate to reversible or plain 

error." State v. Sui Kam Tung, 460 N.J. Super. 75, 94 (App. Div.), certif. denied, 

240 N.J. 249 (2019). As we explained in Tung: 

The Feaster Court found the error of failing to excise 

the reference or provide a cautionary instruction was 

harmless due to "the fleeting nature of the reference" in 

testimony, the fact that the prosecutor "did not 

comment on the matter during summation," and the trial 

judge's "emphatic instruction" that defendant's failure 

to testify could not be held against him, which 

"impart[ed] to the jury the respect to be accorded 

defendant's decision to remain silent." 

[Id. at 94 (quoting Feaster, 156 N.J. at 77).]

In the present matter, defendant's invocation demonstrated why the 

questioning ceased and, as such, was properly admitted at trial. The prosecutor 

neither elicited any testimony about defendant's invocation from the detective 

through whom the statement was introduced at trial, nor commented on 
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defendant's right during summation. Instead, the prosecutor urged the court to 

issue the curative instruction, albeit belatedly. See State v. Herbert, 457 N.J. 

Super. 490, 505-06 (App. Div. 2019) (citations omitted) (reiterating the 

principle that "a swift and firm instruction is better than a delayed one"). Thus, 

although not requested by defendant, the trial judge should have issued the 

limiting instruction when defendant's statement was played for the jury. 

Nonetheless, we do not find plain error here. The exchange by defendant 

that terminated the interview was brief; the prosecutor did not comment on it 

during summation; defendant's attorney never objected; and the judge 

specifically instructed the jury to refrain from "draw[ing] any negative inference 

from the defendant's exercise of his constitutional rights." We presume the jury 

followed the trial judge's instructions. See State v. Vega-Larregui, 246 N.J. 94, 

126 (2021). 

II.

For the first time on appeal in point III, defendant asserts the trial judge 

sua sponte failed to admit in evidence the English-language translation of his 

statement to police, which was conducted entirely in Spanish and played for the 

jury in that form. Defendant argues because the jury "was never presented with 

evidence of defendant's statement that was in a form that the jury could 
10 A-5901-17

understand," the jury was unable to consider his "denial of culpability." We are 

unpersuaded. 

Defendant's statement was admitted in evidence through the testimony of 

HCPO Detective Paola Bolivar – one of two Spanish-speaking officers, who 

questioned defendant. Prior to playing the video for the jury, Bolivar testified 

she had previously reviewed the English-language transcript of defendant's 

statement and that it was "accurate in terms of substance." The transcript was 

marked for identification and copies were distributed to the jury. The prosecutor 

then instructed the detective to "follow along and let [everyone] know when to 

turn the page." 

Prior to the distribution of the transcripts to the jurors, defense counsel 

expressly indicated she had "no objection." The prosecutor then confirmed in 

open court that the transcripts would "be used as an aid for the jury." Later, at 

the conclusion of the judge's final instructions and before the evidence was 

provided to the jury, the prosecutor advised the judge that counsel agreed "the 

transcript will . . . not go to the jury room. We'll hold that if they want to watch 

the [video]." The judge concurred, stating: "It's not evidence." 

Our court rules generally permit members of the jury to "take into the jury 

room the exhibits received in evidence." R. 1:8-8. Thus, exhibits that are 
11 A-5901-17

marked for identification but not moved in evidence ordinarily should not be 

provided to the jury. We have long recognized "a transcript may be used as an 

aid for understanding a tape recording." State v. DeBellis, 174 N.J. Super. 195, 

199 (App. Div. 1980); see also State v. Zicarelli, 122 N.J. Super. 225, 239-40 

(App. Div. 1973). The decision whether to provide the transcript to the jurors 

during their deliberations lies within the trial court's sound discretion. See

DeBellis, 174 N.J. Super. at 199. 

In DeBellis, we discerned no error in the trial court's decision to provide 

transcripts of the defendant's recorded statements, where among other factors, 

witnesses testified to their accuracy; the defendants did not deny their accuracy; 

the judge issued a limiting instruction on the use of the transcript; and "the jury 

had already seen the transcripts." Ibid. Those factors similarly apply here, 

especially where defendant's statement was made in Spanish and the translated 

transcript assisted the jurors in comprehending the statement. 

Notably, however, in DeBellis, the trial court also believed it "had 

unintentionally deceived [the] defendants into believing that the transcripts 

would go into evidence." Ibid. Conversely, in the present matter, the parties 

agreed that the transcripts would not be provided to the jurors during 
12 A-5901-17

deliberations unless they asked to replay the video-recorded statement.3 

Because the jury was provided with an English transcription of defendant's 

statement when the video recording was played during trial, the jury was 

presented with defendant's denial of fault, which they again heard when he 

testified. Even if the judge abused his discretion by not providing the transcripts 

to the jury during their deliberations, that decision was not "clearly capable of 

producing an unjust result." R. 2:10-2. 

III.

A.

Little need be said regarding the belated contentions raised in point I, 

challenging the trial court's instructions on burglary and the sufficiency of the 

evidence supporting the jury's verdict on that charge. Defendant initially asserts 

error in the following portion of the burglary instruction: 

Purpose, with purpose and similar words have the 

same meaning. In other words, in order for you to find 

the defendant acted purposely, the State must prove 

beyond a reasonable doubt that it was his conscious 

object at the time he unlawfully entered . . . the 

premises to commit an unlawful act.

3

 We presume playback of the video-recorded statement would have proceeded 

in open court. See State v. A.R., 213 N.J. 542, 546 (2013). 
13 A-5901-17

Defendant claims the emphasized language advised the jury "to assume" 

he was not privileged or licensed to enter Katrina's residence, thereby relieving 

the State of its obligation to prove defendant entered Katrina's residence without 

permission and negating his consent defense. Defendant's argument is belied by 

the entirety of the trial judge's instructions, which largely tracked the model jury 

charge. See Model Jury Charges (Criminal), "Burglary in the Second Degree 

(N.J.S.A. 2C:18-2(b))" (rev. Mar. 14, 2016). 

Prior to defining "purpose," – and consistent with the model jury charge 

and the burglary statute – the judge aptly instructed the jury on the elements of 

burglary: "In order for you to find the defendant guilty of burglary, the State 

must prove beyond a reasonable doubt the following elements: the defendant 

entered the structure known as K[atrina]'s apartment without permission; that 

the defendant did so with the purpose to commit an offense therein." (Emphasis 

added). See ibid.; N.J.S.A. 2C:18-2(a)(1). A jury charge that tracks the 

language of the governing statute, and is consistent with the applicable model 

jury charge, is not plainly erroneous. See State v. Rodriguez, 365 N.J. Super. 

38, 53-54 (App. Div. 2003).
14 A-5901-17

B.

Defendant further contends the trial judge erred in sua sponte failing to: 

dismiss the burglary count at the conclusion of the State's case, R. 3:18-1; or 

enter a judgment of acquittal notwithstanding the verdict, R. 3:18-2. Noting 

there was no evidence of forced entry, defendant argues "it was possible" he and 

Katrina "were already inside the apartment when she was pushed." Defendant's 

delayed argument fails under both Rules.

"At the close of the State's case or after the evidence of all parties has been 

closed, the court shall, on defendant's motion or its own initiative," enter a 

judgment of acquittal "if the evidence is insufficient to warrant a conviction." 

R. 3:18-1. A trial judge may also enter a judgment of acquittal after a jury has 

returned a guilty verdict. R. 3:18-2; see Pressler & Verniero, Current N.J. Court 

Rules, cmt. 1 to R. 3:18-2 (2021). Under Rule 3:18-1, the trial judge must 

determine whether, viewing the evidence in its entirety and "giving the State the 

benefit of all favorable testimony as well as all . . . favorable inferences which 

reasonably could be drawn therefrom, a reasonable jury could find guilt of the 

charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). 

"When a defendant moves for a judgment of acquittal after all the proofs, 

however, the court considers not only the evidence presented by the State, but 
15 A-5901-17

'the entirety of the evidence.'" State v. Lodzinski, 246 N.J. 331, 357 (2021), 

(Patterson, J., concurring) (quoting State v. Williams, 218 N.J. 576, 594 (2014)). 

Here, the State presented sufficient evidence that defendant committed 

second-degree burglary under N.J.S.A. 2C:18-2(b)(1), where "in the course of 

committing the offense," he "[p]urposely, knowingly or recklessly inflict[ed] 

. . . bodily injury on [Katrina]." Katrina testified that, upon reaching her 

apartment door, she realized someone was behind her. After unlocking the door 

and pushing it, she turned toward defendant, asking: "What are you doing?" At 

that point, defendant pushed Katrina into the apartment, causing her to fall to 

the living room floor. Katrina told the jury "[i]t hurt" when she fell on the floor. 

She described a "big struggle" which preceded the sexual offenses. Katrina

testified she never gave defendant permission to enter her apartment – or 

anywhere inside the building. 

Katrina's testimony, in addition to the surveillance footage, provided 

sufficient evidence to present the case to the jury under Rule 3:18-1. Even in 

view of defendant's testimony to the contrary, that evidence also was sufficient 

to convict him of burglary under Rule 3:18-2. 
16 A-5901-17

IV.

Lastly, defendant argues his sentence is excessive. He asserts the judge 

erroneously imposed the maximum prison term on each conviction by 

improperly finding aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the nature 

and circumstances of the offense), and two, N.J.S.A. 2C:44-1(a)(2) (the gravity 

and seriousness of harm to the victim). Defendant also contends the Yarbough4

factors do not support the imposition of consecutive sentences. For the reasons 

that follow, we remand for resentencing. 

Our analysis of these arguments is framed by well-settled principles. 

Ordinarily, we defer to the sentencing court's determination, State v. Fuentes, 

217 N.J. 57, 70 (2014), and do not substitute our assessment of the aggravating 

and mitigating factors for that of the trial judge, State v. Miller, 205 N.J. 109,

127 (2011); see also State v. Case, 220 N.J. 49, 65 (2014). We will not disturb 

a sentence that is not manifestly excessive or unduly punitive, does not 

constitute an abuse of discretion, and does not shock the judicial conscience. 

See State v. O'Donnell, 117 N.J. 210, 215-16 (1989). However, our deference 

"applies only if the trial judge follows the Code and the basic precepts that 

channel sentencing discretion." Case, 220 N.J. at 65. 

4 State v. Yarbough, 100 N.J. 627 (1985).
17 A-5901-17

A. Aggravating Factors One and Two

At sentencing, the trial judge found aggravating factors one, two, three, 

and nine. See N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the 

offense); (a)(2) (the gravity and seriousness of harm to the victim); (a)(3) (the 

risk of re-offense); (a)(9) (the need to deter defendant and others). The judge 

contemplated mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (the absence of a 

prior criminal record), but did not find that factor because defendant had a prior 

domestic violence offense. The judge concluded the aggravating factors 

substantially outweighed the non-existing mitigating factors.5

We review a trial judge's findings as to aggravating and mitigating factors 

to determine whether the factors are based on "competent, credible evidence in 

the record." O'Donnell, 117 N.J. at 215. "To facilitate meaningful appellate 

review, trial judges must explain how they arrived at a particular sentence." 

Case, 220 N.J. at 65. "Elements of a crime, including those that establish its 

grade, may not be used as aggravating factors for sentencing of that particular 

crime," State v. Lawless, 214 N.J. 594, 608 (2013), which "would result in 

impermissible double-counting," State v. A.T.C., 454 N.J. Super. 235, 254 (App. 

5 Defendant does not challenge the imposition of aggravating factors three and 

nine, or the absence of mitigating factors.
18 A-5901-17

Div. 2018); see also Yarbough, 100 N.J. at 633. We will remand for 

resentencing if the sentencing court considers an inappropriate aggravating 

factor. Lawless, 214 N.J. at 604-05.

While "sentencing courts frequently apply both aggravating factors one 

and two, each requires a distinct analysis of the offense for which the court 

sentences the defendant." A.T.C., 454 N.J. Super. at 255 (quoting Lawless, 214 

N.J. at 600). When evaluating aggravating factor one, "[a] sentencing court may 

consider 'aggravating facts showing that [a] defendant's behavior extended to 

the extreme reaches of the prohibited behavior.'" State v. Miller, 237 N.J. 15, 

29 (2019) (alterations in original) (quoting Fuentes, 217 N.J. at 75). 

Aggravating factor two "focuses on the setting of the offense itself with 

particular attention to any factors that rendered the victim vulnerable or 

incapable of resistance at the time of the crime." Lawless, 214 N.J. at 611. As

the Court has noted, "psychological harm . . . has been considered relevant under 

this aggravating factor." State v. Kromphold, 162 N.J. 345, 357 (2000); see also

State v. Logan, 262 N.J. Super. 128, 132 (App. Div. 1993) (finding aggravating 

factor two applied where the defendant caused psychological harm to a sexual 

assault victim).
19 A-5901-17

Here, the judge assigned "some weight" to aggravating factor one, finding 

defendant "came up from behind [Katrina] and ambushed her." According to 

the judge: "That alone is aggravating factor number one, the nature of the 

offense. [Defendant] absolutely surprised her and [he] stalked her." 

While the surveillance video depicts defendant's minivan driving 

alongside Katrina as she was walking, then rushing into her apartment building 

after she entered, Katrina was unaware that defendant was "stalking" her. 

However, because we agree that defendant ambushed Katrina in the sanctity of 

her home – and because the judge assigned minor weight to aggravating factor 

one – we discern no reason to disturb the judge's finding. 

Turning to aggravating factor two, the judge found defendant caused 

"tremendous harm" to Katrina, thereby assigning this factor "tremendous 

weight." To place the judge's findings in context, we note – similar to 

defendant's trial – the sentencing hearing was marked by two vastly different 

arguments. 

Against the advice of counsel, defendant made a lengthy statement on his 

own behalf. He claimed he forgave Katrina "for all the evil [she did to him]; for 

lying; destroying [his] life; and destroying [his] family's life." Defendant 

accused Katrina's friends of manipulating her to file false charges against him.
20 A-5901-17

Conversely, Katrina's loved ones spoke of a young woman who was 

shattered emotionally after the incident: A "young, vibrant woman," whose "life 

has forever been changed." According to her aunt, Katrina "thought[] of ending 

her own beautiful life." Katrina's mother told the judge Katrina cried 

"hysterical[ly]" when drafting her victim-impact statement. 

In finding aggravating factor two, the judge elaborated:

I've heard today about K[atrina] sobbing to her 

family and friends, the letters and what I hear today, of 

thoughts of suicide, that's today. 

The day of the incident, afterwards her family 

and friends found her curled up in her bed in the fetal 

position, near lifeless. 

She felt so unsafe in her room, that at times she 

slept with her roommate [be]cause she didn't even want 

to be alone in her own bed. 

But that got worse. She couldn't even bear that.

So, she moved out of Hoboken but continued to work 

in New York, but endured having to commute a . . . 

much longer commute and not be[ing] with her friends 

just because she feared being alone. She didn't fear that 

before April 23, 2017. 

. . . . 

[]I remember K[atrina] testifying and even 

though she's not here today, I incorporate that into my 

finding of aggravating factor number two. She was 

crying. She was ashamed. She had a very low voice. 

She was hurt. Those are all certainly harms. 
21 A-5901-17

The judge's detailed findings dispel defendant's contentions that "the court 

did not put forth its reasoning for finding this factor or why it was putting 

tremendous weight on it." The psychological harm to Katrina recounted by the 

judge, see Kromphold, 162 N.J. at 357; Logan, 262 N.J. Super. at 132, finds 

support in the record, see O'Donnell, 117 N.J. at 215. Moreover, because 

Katrina was taken off guard as she entered her home, and overpowered by 

defendant thereafter, the record further demonstrates she was "incapable of 

resistance at the time of the crime." Lawless, 214 N.J. at 608.

B. Consecutive Sentences

In imposing consecutive sentences, the trial judge recognized Yarbough

as controlling precedent. In Yarbough, our Supreme Court set forth the 

following "criteria as general sentencing guidelines for concurrent or 

consecutive sentencing decisions": 

(1) there can be no free crimes in a system for 

which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive 

or concurrent sentence should be separately stated in 

the sentencing decision;

(3) some reasons to be considered by the 

sentencing court should include facts relating to the 

crimes, including whether or not: 
22 A-5901-17

(a) the crimes and their objectives were 

predominantly independent of each other;

(b) the crimes involved separate acts of 

violence or threats of violence;

(c) the crimes were committed at different 

times or separate places, rather than being 

committed so closely in time and place as to 

indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple 

victims;

(e) the convictions for which the sentences 

are to be imposed are numerous;

(4) there should be no double counting of 

aggravating factors; [and]

(5) successive terms for the same offense should 

not ordinarily be equal to the punishment for the first 

offense[.] 

[100 N.J. at 643-44.]

A sixth factor, imposing an overall outer limit on consecutive sentences, was 

superseded by statute. See State v. Eisenman, 153 N.J. 462, 478 (1998) (citing 

N.J.S.A. 2C:44-5(a)).

Like the statutory aggravating and mitigating factors, "[t]he Yarbough

factors are qualitative, not quantitative," and "applying them involves more than 

merely counting the factors favoring each alternative outcome." State v. Cuff, 
23 A-5901-17

239 N.J. 321, 348 (2019). Instead, the sentencing court must consider all the 

Yarbough guidelines, with emphasis on the five subparts of the third guideline. 

State v. Rogers, 124 N.J. 113, 121 (1991). Concurrent or consecutive sentences 

are at the discretion of the sentencing judge. See State v. Carey, 168 N.J. 413, 

422 (2001) (citing N.J.S.A. 2C:44-5(a)). In applying the factors, "[t]he focus 

should be on the fairness of the overall sentence, and the sentencing court should 

set forth in detail its reasons for concluding that a particular sentence is 

warranted." State v. Miller, 108 N.J. 112, 122 (1987). 

In his assessment of the Yarbough factors that supported consecutive 

sentences, the trial judge placed "the most weight on the first factor: There can 

be no free crimes." The judge also found defendant committed "three 

independent acts of violence," resulting in three separate convictions, and there 

was no double counting of the aggravating factors. Unsure whether defendant's 

objectives were predominantly independent of one another, the judge recognized 

the crimes were committed "very close in time," and involved a single victim. 

Although these crimes could be viewed as part of a continuous episode of 

aberrant conduct, there is no question they represented separate violations of the 

victim. Defendant's pushing his way into Katrina's home and knocking her to 

the floor was different from his pinning her down and touching her vagina with 
24 A-5901-17

his finger and penis. As we recognized more than three decades ago in a similar 

case: "Clearly, the burglary offense is distinct and dissimilar [from] the sexual 

offense." State v. Mosch, 214 N.J. Super. 457, 462-63 (App. Div. 1986). Stated 

another way, defendant could have been charged and convicted of seconddegree burglary without committing sexual offenses – and vice-versa. See id.

at 463. Accordingly, we find no abuse of discretion in the court's imposition of 

consecutive sentences consistent with the Yarbough guidelines. 

While this appeal was pending, however, our Supreme Court issued its 

opinion in State v. Torres, 246 N.J. 246 (2021). In that case, the Court 

exhaustively reviewed the Yarbough factors, while reaffirming the discretionary 

authority of trial courts to impose consecutive sentences by using those 

guidelines. Id. at 264-66. The Court reiterated that Yarbough requires the trial 

court to place on the record a statement of reasons for imposing consecutive 

sentences, which should address the overall fairness of the sentence. Id. at 267-

68 (citing Miller, 108 N.J. at 122).

The Court further recognized that sentencing judges "often seized upon" 

the "no free crimes" factor identified in Yarbough. Id. at 269. However, after 

Yarbough was decided, the Legislature eliminated the sixth factor, which limited 

the overall length of consecutive sentences. Ibid. The Court explained that the 
25 A-5901-17

Yarbough "no free crimes" factor was part of "a set of considerations that 

originally included an outer limit." Ibid. 

As a result, the Court held: 

An explicit statement, explaining the overall 

fairness of a sentence imposed on a defendant for 

multiple offenses in a single proceeding or in multiple 

sentencing proceedings, is essential to a proper 

Yarbough sentencing assessment. . . . Acknowledging 

and explaining the fairness of the overall sentence 

imposed on the defendant advances critical sentencing 

policies of the Code, as amplified by Yarbough. It 

remains, in fact, the critical remnant of accountability 

imposed by Yarbough, since the legislative elimination 

of the outer limit imposed by factor six.

[Id. at 268.]

In the present matter, the trial judge assessed the applicable Yarbough

factors, relying heavily on the "no free crimes" factor. He did not address 

explicitly or implicitly, the overall fairness of the maximum, consecutive

sentences imposed on defendant, who had no prior indictable convictions. 

Consistent with the Court's advisement in Torres, we therefore remand for the 

trial judge to provide "[a]n explicit statement, explaining the overall fairness" 

of the sentences imposed. 

Consequently, we vacate the sentence imposed and remand the matter for 

resentencing in light of the Court's admonition in Torres. We express no 
26 A-5901-17

position on the appropriate aggregate sentence. In all other respects, we affirm 

defendant's convictions.

Affirmed, and remanded for resentencing. We do not retain jurisdiction.