### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1993- 20 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. C.O.C. , Defendant-Appellant.

_______________________

Submitted October 16, 2023

– Decided December 1, 2023 Before Judges Mawla and Vinci. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 20

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- 0038. Nicholas A. Moschella, Jr., attorney for appellant. Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Nancy A nne Hulett, Assistant Prosecutor, of counsel and on the briefs ).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1993

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On March 11, 2020, defendant C.O.C. 1 was convicted by a jury of firstdegree aggravated sexual assault, N.J.S.A. 2C:14-2( a)(1) (count one); seconddegree sexual assault, N.J.S.A. 2C:14-2(b) (count t wo); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count four); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4(a)(1) (count five). The victim was defendant's daughter, A.C. who was twelv e to thirteen years old at the time the offenses were committed

. Defendant moved for a new trial. On January 14, 2 021, the court denied that motion. On February 19, 2021, the court sente nced defendant to the following custodial terms: (1) forty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one; (2) eight years subject to NERA, on count two to be served consecutive to count one; ( 3) four years on count four to be served consecutive to counts one and two; an d (4) eight years on count five. The court did not impose a consecutive sentence on count five. Defendant now appeals from his convictions and sentence, as well as the order denying his motion for a new trial. Based on our revie w of the record and the applicable legal principles, we affirm the conv iction and order denying the

1 We use initials to protect the identity of the ch ild victim of sexual assault. R. 1:38 -3(c)(9).3 A- 1993

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motion for a new trial. We also affirm the sentenc e imposed, but remand for the limited purpose of providing a statement on the ove rall fairness of the sentence pursuant to State v. Torres. 2
I. A.C turned thirteen in December 2016. The State a lleged defendant committed acts of sexual assault against A.C. from October 1, 2016, until May 9, 2017. At that time, A.C. was living in East Brunswick wit h defendant, her twin brother, her sixteen-year-old brother (C.C.), and defendant's girlfriend. A.C. attended middle school in East Brunswick.
On the morning of May 9, 2017, A.C. argued with defend ant' s girlfriend before A.C. left for school. Defendant, who had al ready left for work, spoke with A.C. on the phone about the argument

. She told defendant she packed her bags and was leaving and not returning home. A.C. did not arrive at school and school authoritie s searched for her. A school security officer found her in a park near th e school. She was very upset. A.C. said she did not want to go home because her f ather was touching her. The security officer took A.C. to the school, and schoo l officials contacted the East Brunswick Police.

2 State v. Torres , 246 N.J. 246 (2021).4 A- 1993

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East Brunswick Police Detective Crispin Ferrace res ponded to the school and spoke with A.C. A.C. was then transported to p olice headquarters. Detective Ferrace took a statement from A.C. at pol ice headquarters. A.C. said her father began touching her several months before , and the touching continued through May 2017. She told police the touching started when defendant ' s girlfriend went into the hospital. Defendant arrived at the police station to retrieve A.C. Detective Ferrace and Detective Jason Mendelson of the Middlesex Coun ty Prosecutor's Office conducted a video recorded interview of defendant. Officers read defendant his Miranda 3 rights. Defendant confirmed he understood his rights and si gned the standard Miranda rights form indicating he understo od his rights and agreed to waive them and speak with the officers. Defendant admitted he touched A.C. over and under her clothes and performed oral sex o n her, and A.C. touched his penis causing him to be aroused

. Defendant moved to suppress the statement, and the State moved to admit the statement pursuant to N.J.R.E. 803(b)(1). In t he alternative, d ef endant argued the court should redact "any discussion of [ C.C.]; . . . [and] discussion of any touching by and between the defendant's chil d ren ."

3 Miranda v. Arizona, 384 U.S. 436 (1966).5 A- 1993

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The trial court conducted a two -day Miranda hearing. The court reviewed the recorded statement and heard testimony from Det ective Mendelson. Defendant did not testify at the Miranda hearing. On May 1, 2019, the court denied defendant' s motion to suppress in an oral opinion finding defen dant voluntarily, knowingly, and intelligently waived hi s Miranda rights and gave his statement voluntarily. On January 8, 2020, a grand jury indicted defendant on charges of: firstdegree aggravated sexual assault, N.J.S.A. 2C:14-2( a)(1) (count one); seconddegree sexual assault, N.J.S.A. 2C:14-2(b) (count t wo); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2) (a) (count three); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count four); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4(a)(1) (count five). The trial occurred during February and March 2020. At trial , A.C. testified that defendant touched her for the first time when his girlfriend was in the hospit al after she attempt ed suicide. The State established through another witness that defendant's girlfriend was hospitalize d from October 18 until October 24, 2016. On that first occasion, A.C. and defendant were lyi ng on defendant's bed watching a movie. Defendant "grabbed" and touched her breasts over and under6 A- 1993

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her clothes. He also touched and "rubbed" A.C.'s v agina with his hands and touched and "licked" her vagina with his mouth. De fendant was holding and rubbing her legs when this occurred. Defendant lat er apologized to her, told her not to tell anyone, and claimed he did it because h e was lonely. Another incident of abuse occurred soon after defen dant's girlfriend returned from the hospital. Defendant and A.C. wer e in her brothers' room and defendant touched and licked her breasts and licked her vagina. On one later occasion, A.C. "had to perform oral s ex" on defendant for "a couple minutes." On another occasion, A.C. masturbated defendant' s penis for "like five minutes." The last time defendant touched her inappropriately was shortly before she ran away on May 9, 2017. The ni ght before she ran away, defendant told her "he was going to come into [her] room," which meant, to her, that he was going to come "touch [her] private area s" and "breasts." A.C testified that defendant touched her private areas and her breasts "probably about [twenty times]." The State moved to admit a redacted version of defe ndant's recorded statement into evidence. It was admitted without o bjection and played for the jury. The statement was approximately one hour and forty minutes. Before the video was played, the court read the Model Jury Cha rges (Criminal), "Redacted7 A- 1993

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Recorded Statement of Defendant" (Oct. 2014) and Mo del Jury Charges (Criminal), "Statements of Defendant (Allegedly Mad e)" (June 2010). Defendant did not raise any object ion to those charges. Defendant testified in his own defense. He denied ever touching A.C. inappropriately. He testified that he had never been interviewed by police before and he was scared. He felt the detectives were try ing to get him to confess to what they believed to be the truth, and he was not treated fairly. He did not ask for a lawyer because he thought he was only at the police station to pick up his kids and answer some questions about why A.C. ran away. He believed that if he confessed, he would be able to take his kids and go home. According to defendant, his confession was not truthful. Before instructing the jury , the court conducted a final jury charge conference. Defendant did not raise any objections to the proposed jury instructions. During deliberations, the jury reque sted to view "the video of the confession, starting at the confession point at the [seventy-five]-minute marker." The court reviewed the jury' s request with counsel. Defendant did not object, and the portion of the recorded statement requested was shown to the jury. Defendant did not request any additional portions o f the statement be played and did not request any additional jury instructions. The jury resumed deliberations.8 A- 1993

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Later that afternoon, the jury delivered its verdic t. Defendant was convicted on counts one, two, four, and five and acquitted on co unt three. Defendant filed a motion for a new trial pursuant t o R ule 3:20 -1. He argued that the verdict was against the weight of t he evidence based on the "credibility of the victim" and because "there was some conflict with some timeline[s], and when these acts alleged[ly] occurr ed." Defendant also argued that there was an issue "on duration, scope, and in tensit y" of the recorded statement, and playing back a portion of the statem ent at the jury's request put "some of the onus . . . on the defendant, and/or . . . against the credibility of the victim." Defendant claimed that "as far as the inconsistenci es . . . portions of the victim's statement should have been . . . instructed upon differently" and the
court' s "limiting instruction did [not] fully . . . make the jury aware, or . . . allow them to consider it when those inconsistencies aros e." Following oral argument, the court denied the motio n for new trial in an oral opinion. The court found the jury reached its verdict after carefully assessing the evidence including A.C.'s testimony, defendant's recorded statement, and defendant's trial testimony. It noted that defendant's recorded statement was consistent in many respects with A.C's testimony. The court also determined the jury instructions were reviewed and approved by defense counsel9 A- 1993

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and were consistent with the model criminal jury ch arges. The court found there was no reason to "second-guess" the jury's verdict. On February 11, 2021, defendant was sentenced. On February 19, 2021, the court entered the judgment of conviction. This appeal followed. Defendant raises the following points on appeal: Point One
DEFENDANT WAS FOUND GUILTY AGAINST THE WEIGHT OF THE EVIDENCE AND WAS ACCORDINGLY DENIED HIS RIGHT TO A FULL AND FAIR TRIAL ON THE MERITS. . . . Point Two
THE COURT ERRONEOUSLY DENIED THE MOTION OF DEFENDANT FOR A NEW TRIAL AND FAILED TO PROPERLY ADDRESS ARGUMENT OF DEFENDANT AS TO RULE 3:20

- 1. . . . Point Three
THE COURT RELIED ON IMPROPER FACTORS DURING SENTENCING AND THEREFORE THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE. . . .
II. Defendant contends the trial court erred by denying his motion for a new trial. Specifically, he argues "the [c]ourt's fail ure to properly consider the10 A- 1993

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irreparable harm potentially caused by the allowanc e of the jury to review the specific portion of [defendant's statement] dealing only with [his] confession" deprived him of a full and fair trial. Defendant a lso argues the court should have granted the motion because of inconsistencies in A. C.’s testimony. We are not convinced.
R ule 3:20 -1 provides: The trial judge on defendant's motion may grant the defendant a new trial if required in the interest o f justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of th e evidence unless, having given due regard to the opportunity of the jury to pass upon the credibilit y of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the la w. "[A] motion for a new trial is addressed to the sou nd discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Armour, 446 N.J. Super. 295, 306 (App. Div. 2016) (internal quotation omitted). When the factfinder rationally concludes the essential elements of the crime are present beyond a reasonable doubt, a reviewing court will not find a manifest denial of justice as required by R ule 3:20-1. State v. Jackson, 211 N.J. 394, 413-14 (2 012). A reviewing court will "weigh heavily the trial court 's 'views of credibility of witnesses, their demeanor, and [its] general "feel of the case."'" State v.11 A- 1993

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Carter , 91 N.J. 86, 96 (1982) (alteration in original) (quo ting State v. Sims, 65 N.J. 359, 373 (1974)). "If the trial court acts un der a misconception of the applicable law, however, the appellate court need n ot give such deference." State v. Brown, 118 N.J. 595, 604 (1990). The trial court's opinion denying defendant's moti on carefully evaluated the testimony and evidence presented at trial. The court described the demeanor of the witnesses and noted that the jury intently w atched and paid attention to the testimony. The court reviewed A.C.'s testimony regarding the alleged acts of touching and other sexual conduct and concluded that the jury found her credible. Defendant's contention that the court failed to co nsider his arguments about the playback of his recorded statement finds no support in the record. In fact, the court expressly considered and rejected d efendant's arguments relating to the statement and the jury instructions the cour t provided. The evidence produced at trial was plainly suffici ent for the jury to rationally conclude the State proved the essential elements of the crimes beyond a reasonable doubt. A.C. testified defendant touche d her breasts and vagina and performed oral sex on her before and after she turn ed thirteen. As the trial court noted, defendant's recorded statement was consisten t with A.C.'s testimony in12 A- 1993

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many respects. The jury was instructed properly on its role in evaluating the evidence, including the credibility of the witnesse s, and it was the role of the jury, not the trial judge, to consider the impact o f any alleged inconsistencies in A.C.’s testimony. It was not an abuse of discreti on to deny defendant's motion for a new trial.
III. Defendant next contends the trial court failed to c onsider arguments raised in his motion for a new trial. Defendant first arg ues he was not permitted to present evidence of third-party guilt. This argument is raised for the first time on appeal and lack s merit. When a defendant raises an issue for the first time on appeal, we review the action or omission complained of for plain erro r. R. 2:10 -2; State v. Macon , 57 N.J. 325, 333 (1971). Under this standard of re view, we disregard any error or omission "unless it is of such a nature as to ha ve been clearly capable of producing an unjust result." R. 2:10 -2. "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether t he error led the jury to a result it otherwise might not have reached.'" Stat e v. Ross, 229 N.J. 389, 407 (2017) (quoting State v. Williams, 168 N.J. 323, 33 6 (2001)).

A defendant who does not raise an issue before a tr ial court bears the burden of establishing that the tri al13 A- 1993

- 20 court's actions constituted plain error . . . becau se " to rerun a trial when the error could easily have been cured on request[] would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal." [Ibid. (quoting State v. Weston, 222 N.J. 227, 295 (2015)) ]. In support of this argument, defendant contends his son was also charged as a juvenile with similar crimes against A.C. Def endant then argues "the scenario existed that [he] was at least putting for th the claim that he in fact confessed to and was being [p]rosecuted to protect himself and his son from consequence[s] of false accusations." Defendant, h owever, never asserted any such argument in the trial court. In fact, he succ essfully applied to have any references to his son redacted from his recorded statemen t and excluded at trial. Defendant does not articulate how such an argument would have constituted a meritorious third-party guilt defense . A.C. testified defendant committed the offenses against her and the jury fou nd her credi ble . There is no reason to conclude the jury would have reached a di fferent verdict if it learned defendant's son was also accused of similar acts ag ainst her at different times. Defendant has not established he was prevented from asserting a meritorious third-party guilt defense. There is no basis to find error, let alone plain error. Even if we found error, which we do n ot, because defendant actively14 A- 1993

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sought to exclude evidence of his son's alleged con duct at trial, defendant's claim would be barred by the doctrine of invited error. "Trial errors which were induced, encouraged or acquiesced in or consented t o by defense counsel ordinarily are not a basis for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974). Defendant al so argues the trial court failed t o provide an appropriate limiting instruction after the portion of his recor ded statement the jury requested was played back. Specifically, defendant argues "t he duration, scope and intensity of the interrogation was . .

. undermine d. " We are not persuaded. Defendant neither object ed to the jury's request to play back a portion of defendant's statement, nor did he request any addit ional jury instructions relating to the portion played back. Because these arguments were raised for the first time post-trial, we review for plain error. R. 2:10 -2. When a litigant does not request a limiting instruction at trial, we review for plain error. State v. Cole , 229 N.J. 430, 455 (2017) (citing State v. Montalvo, 229 N.J. 300, 320 (2017)). "[T]he response to a jury's request for a readback of testi mony or a replay of a video recording is vested in the discretion of the trial judge." State v. A.R. , 213 N.J. 542, 555

– 56, (2013). "Generally, once an exhibit has been a dmitted15 A- 1993

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into evidence, the jury may access it during delibe rations, subject to the court's instructions on its proper use." State v. Burr, 19 5 N.J. 119, 133-34 (2008). Defendant has not established plain error. It was not an abuse of di scretion for the trial court to play back the porti on of the statement the jury requested. The jury previously viewed the entire s tatement. Playing back the requested portion did not undermine the jury's abil ity to assess the nature and content of the entire statement. Defendant does not identify any jury instruction the trial court failed to provide. The court instructed the jury appropriate ly regarding the recorded statement when it was initially played for the jury and again during the court' s final instructions. We do not perceive any error, much less plain error.
IV. Defendant argues the trial court erred by admittin g his recorded statement. Defendant did not appeal from the court's May 1, 20 19 order denying his motion to suppress. We will nevertheless consider the mer its of his arguments. Defendant contends his statement was not given vol untarily, and the detectives improperly minimized the significance of the Miranda warnings by referring to them as "protocol." These arguments are not persuasive.16 A- 1993

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In reviewing a trial court's decision to admit a de fendant's statement to law enforcement, we give deference to the court's factu al findings. State v. Elders , 192 N.J. 224, 244 (2007). We do so in recognition of the trial court's "'opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at 243 (quoting State v. Johnson , 42 N.J. 146, 161 (1964)). The reviewing court "ord inarily will not disturb the trial court's factual findings unless they are 'so clearly mistaken that the interests of justice demand intervention and correc tion.'" State v. Goldsmith , 251 N.J. 384, 398 (2022) (quoting State v. Gamble, 218 N.J. 412, 425 (2014)). However, legal conclusions are reviewed de novo. S tate v. Radel, 249 N.J. 469, 493 (2022). "The administration of Miranda warnings ensures th at a defendant's right against self-incrimination is protected in the inhe rently coercive atmosphere of custodial interrogation." State v. A.M., 237 N.J. 384, 397 (2019). Accordingly, a defendant "must be warned prior to any questioni ng that [they have] the right to remain silent, . . . anything [they say] can be used agai nst [them] in a court of law , [and] . . . [they have] the right to the presence o f an attorney . . . ." Miranda , 384 U.S. at 4 79.17 A- 1993

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"A confession or incriminating statement obtained d uring a custodial interrogation may not be admitted in evidence unles s a defendant has been advised of his or her constitutional rights[,]" and provided a "'voluntary, knowing [,] and intelligent'" waiver of "any or all of thos e rights." State v. Hubbard, 222 N.J. 249, 265 (2015) (quoting State v. Hreha, 217 N.J. 368, 382, (2014)). "New Jersey law requires that the prosecu tion 'prove beyond a reasonable doubt that the suspect's waiver was know ing, intelligent, and voluntary in light of all the circumstances.'" A.M ., 237 N.J. at 397 (quoting State v. Presha, 163 N.J. 304, 313 (2000)). "Furth ermore, the State bears the burden of proving beyond a reasonable doubt that a defendant's confession is voluntary and not resultant from actions by law enf orcement officers that overbore the will of a defendant." Hubbard, 222 N. J. at 267. "[A] valid waiver does not require that an individu al be informed of all information useful in making his decision." A.M., 237 N.J. at 398 (quoting State v. Nyhammer, 197 N.J. 383, 407 (2009)). "Instead, a knowing, intelligent, and voluntary waiver is determined by the totality of t he circumstances surrounding the custodial interrogation based on the fact-based assessments of the trial court." Ibid. "In the totali ty

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- the -circumstances inquiry, courts generally rely on factors such as 'the suspect's age, education an d intelligence, advice as to18 A- 1993

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constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punish ment or mental exhaustion was involved.'" Ibid. (quoting State v. Miller, 76 N.J. 392, 402 (1978)). "Moreover, courts applying the totality- of

- the -circumstances test should look to whether the defendant has had previous encounters w ith law enforcement and the period of time between when Miranda rights were administered and when defendant confessed." Hreha, 217 N.J. at 383. The trial court conducted a two-day Miranda hearing during which it reviewed defendant's recorded statement and heard t estimony from Detective Mendelson. The court found defendant "from beginni ng to end, and most especially at the beginning, was cool, calm and col lected[,] . . . [understood] what his rights were and . . . [understood] the que stions that he was being asked
. . . ." "Defendant was read [his Miranda rights], read them aloud as well himself, acknowledged them verbally and in writing and waived" them. The court observed defendant "clearly appeared sober an d responsive" and he "[n]ever invoked his rights nor terminated the inte rview at any point." The court also observed defendant was "very interactive and c omfortable and responsive

to " the detectives.19 A- 1993

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The court found the statement was given voluntarily and was not the product of coercion. The court acknowledged that t he "interrogation was lengthy" but found "during the entirety of the stat ement, . . . [defendant showed] that he was a highly intelligent individual and too k a thoughtful approach to his dialogue . . . ." The court also found:

[A]t all points during the interview . . . [defenda nt] seemed to be in full control of his faculties, deci ded to answer what he wanted to answer, [and] maintained control of whatever he wanted to remain in control of. Never once did he indicate that his will was [, ] or could it be perceived that his will was[,] overborne. Defendant contends that his statement was not given voluntarily. Specifically, he argues that at trial he testified he felt coerced and fearful for the well-being of his family. He contends that he told the officers he wanted to speak to his mother before he made any incriminatin g statements, and he was misled as to the purpose of the questioning. He al so contends that he asked the officers what his " options " were, and the officers did not explain the specif ic charges he was facing or the possible consequences of being charged. Defendant argues he was not dissuaded from the notion that he might have been able to go home if he confessed. The trial court found that defendant's statement was given voluntarily and was not the product of coercion. The court's decis ion was based on substantial20 A- 1993

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credible evidence, including the court's assessment of the recorded statement and the credibility of the testifying detective. D efendant does not point to

an ything that would cause us to disturb the court's f indings. Defendant never invoked his right to counsel or asked to terminate the questioning. The officers did not mislead him in any way about the charges he fa ced, n or did they tell him he could go home if he confessed. The officers wer e not obligated to terminate the interview because defendant said he wanted to s peak with his mother. There is no basis to disturb the trial court' s conclusion that defendant's statement was given voluntarily and was not the product of coerci on. Relying on State v. O.D.A.-C., 250 N.J. 408 (2022), defendant argues the detectives improperly minimized the significance of the Miranda warnings. Specifically, the detectives told defendant it was "standard protocol . . . to read [the Miranda] rights real quick . . . before [they] start[ed] talking" and "this is just protocol . . . [we need] to make sure you're v oluntarily speaking to us."
I n O.D.A.- C. , the Supreme Court held law enforcement "repeatedly undermined [the Miranda warnings] throughout the in terrogation" including, for example, telling the defendant the warnings were "[ j]ust a formality" and that anything they discussed would remain "confidential between [them]." Id. at
412

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The detectives in this case did not undermin e the Miranda warnings during the interrogation. Telling defendant it was "protocol" to read him his rights and make sure he was speaking to them voluntarily is no t akin to referring to the warnings as a mere formality. The detectives did not minimize or undermine the significance of the Miranda warnings by doing s o. V. Defendant next contends the court relied on imprope r factors during sentencing and the sentence imposed was manifestly excessive. We are not persuaded. We employ a deferential standard when reviewing a t rial court's sentencing decision. State v. Grate, 220 N.J. 317, 337 (2015); State v. Fuentes , 217 N.J 57, 70 (2014). We must affirm a sentence u nless: (1) the trial court failed to follow the sentencing guidelines; (2) the court's findings of aggravating and mitigating factors were not based on competent and credible evidence in the record; or (3) "the [court's] application of the gu idelines to the facts of [the] case makes the sentence clearly unreasonable so as to sh ock the judicial conscience." Fuentes, 217 N.J. at 70 (second alteration in original) (qu oting State v. Roth, 95 N.J. 334, 364-65 (1984)).22 A- 1993

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We assess a trial judge's finding of "aggravating a nd mitigating factors to determine whether they 'were based upon competent c redible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (201 0) (quoting Roth, 95 N.J. at 364 -65). We are "not to substitute [our] assessment o f aggravating and mitigating factors for that of the trial court." I bid. We are satisfied the court properly exercised its d iscretion when analyzing and applying the sentencing factors. The court app lied aggravating factor two based on the gravity and seriousness of harm to a v ulnerable victim, aggravating factor three based on the fact that defendant engag ed in this conduct over a period of several months in various situations and was likely to commit another offense, aggravating factor four because defendant took advantage of his position of trust as A.C. 's father, and aggravating factor nine based on the need to deter. The court gave "great weight" to aggrava ting factor nine based on the need to deter defendant specifically, and the need to deter sexual assault of children generally. The court rejected defendant's request for mitigati ng factor nine because it found a risk defendant would commit another offense in applying aggravating factor three. The court could have applied mitigat ing factor seven because defendant did not have a criminal record but declined to do s o. The court found23 A- 1993

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the aggravating factors substantially outweighed th e mitigating factors. The court's findings of aggravating and mitigating fact ors were based upon competent credible evidence in the record and there is no basis to disturb them. We are not persuaded by defendant' s claim the court erred by imposing consecutive sentences and rejecting his request for merger. "[T]rial judges have discretion to decide if sentences should run concur rently or consecutively." State v. Miller, 205 N.J. 109, 128 (2011) ; see N.J.S.A. 2C:44-5(a). Judges are permitted to impose consecutive sentences where mul tiple sentences of imprisonment are imposed and after considering the Yarbough factors. See State v. Yarbough, 100 N.J. 627, 643 -44 (1985). The Yarbough factors essentially focus upon "the na ture 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)). They should be applied qualitatively, not quantitatively. Id. at 427. A court may impose co nsecutive sentences even though a majority of the Yarbough factors support c oncurrent sentences

. Id. at
427

- 28; see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div. 2000) (explaining even when "offenses [are] connected by a 'unity of specific24 A- 1993

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purpose,'" "somewhat interdependent of one another, " and "committed within a short period of time," concurrent sentences need no t be imposed) (citations omitted). "When a sentencing court properly evaluates the Yar bough factors in light of the record, the court's decision will not normally be disturbed on appeal." Miller, 205 N.J. at 129

. The trial court carefully evaluated the Yarbough fa ctors and determined the sentences imposed on counts two and four would run consecutive to each other and consecutive to count one. Th e offenses were based on separate and distinct acts of abuse that occurred at different t imes. Count one was based on an act of sexual penetration , oral sex, that occurred before A.C. turned thirteen

. Count two was based on sexual contact, touching A.C .'s breasts and vagina, before she turned thirteen. Count four was based o n an act of sexual contact, either defendant touching A.C. or A.C. touching def endant, after A.C. turned thirteen. The court properly evaluated the Yarbough factors i n imposing consecutive sentences and we will not disturb the c ourt's decision. The overall sentence does not shock the judicial conscience. We also reject defendan t' s contention that the court erred by failing to merge counts one, two and four. Under the doctrine of merger, "a separate sentence should not be imposed on the count which m ust merge with another25 A- 1993

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offense." State v. Trotman, 366 N.J. Super. 226, 2 37 (App. Div. 2004). "The doctrine of merger is based on the concept that 'an accused [who] committed only one offense . . . cannot be punished as if for two.'" State v. Tate, 216 N.J. 300, 302 (2013) (alteration in original) (quoting S tate v. Davis, 68 N.J. 69, 77 (1975)). The offenses charged in counts one, two, and four each involved different acts of abuse committed at different time s. The trial court determined correctly those charges do not merge. The State asks that we remand the matter for the li mited purpose of providing a statement on the overall fairness of the sente nce pursuant to Torres , which was decided after defendant was sentenced. T he re, the Supreme Court held "[a]n explicit statement, explaining the overa ll fairness of a sentence imposed on a defendant for multiple offenses . . . is essential to a proper Yarb ough sentencing assessment." Id. at 268. Because the trial court did not have the opportunity to provide an explicit stateme nt explaining the overall fairness of the sentence as required by Torres, we remand for that limited
purpose. To the extent we have not addressed any remaining a rguments, it is because they lack sufficient merit to warrant discu ssion in a written opinion. R. 2:11 -3(e)( 2)

.26 A- 1993

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Affirmed in part and remanded in part. We do not r etain jurisdiction.