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. 20-01-

0038.

Nicholas A. Moschella, Jr., attorney for appellant.

Yolanda Ciccone, Middlesex County Prosecutor, 

attorney for respondent (Nancy Anne 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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-1993-20

 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 two); 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 twelve to thirteen years old at 

the time the offenses were committed. 

 Defendant moved for a new trial. On January 14, 2021, the court denied 

that motion. On February 19, 2021, the court sentenced 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; and (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 review of the record and 

the applicable legal principles, we affirm the conviction and order denying the 

1

 We use initials to protect the identity of the child victim of sexual assault. R.

1:38-3(c)(9). 
3 A-1993-20

motion for a new trial. We also affirm the sentence imposed, but remand for the 

limited purpose of providing a statement on the overall fairness of the sentence 

pursuant to State v. Torres.2

I.

 A.C turned thirteen in December 2016. The State alleged 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 with 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 defendant's girlfriend 

before A.C. left for school. Defendant, who had already 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 authorities searched for her. A 

school security officer found her in a park near the school. She was very upset. 

A.C. said she did not want to go home because her father was touching her. The 

security officer took A.C. to the school, and school officials contacted the East 

Brunswick Police. 

2

 State v. Torres, 246 N.J. 246 (2021). 
4 A-1993-20

East Brunswick Police Detective Crispin Ferrace responded to the school 

and spoke with A.C. A.C. was then transported to police headquarters. 

Detective Ferrace took a statement from A.C. at police 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 County Prosecutor's Office 

conducted a video recorded interview of defendant. Officers read defendant his 

Miranda3 rights. Defendant confirmed he understood his rights and signed the 

standard Miranda rights form indicating he understood 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 on 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 the alternative, defendant 

argued the court should redact "any discussion of [C.C.]; . . . [and] discussion 

of any touching by and between the defendant's children." 

3

 Miranda v. Arizona, 384 U.S. 436 (1966). 
5 A-1993-20

The trial court conducted a two-day Miranda hearing. The court reviewed 

the recorded statement and heard testimony from Detective 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 defendant 

voluntarily, knowingly, and intelligently waived his 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 two); 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 hospital after she attempted suicide. The State established through another 

witness that defendant's girlfriend was hospitalized from October 18 until 

October 24, 2016. 

On that first occasion, A.C. and defendant were lying on defendant's bed 

watching a movie. Defendant "grabbed" and touched her breasts over and under 
6 A-1993-20

her clothes. He also touched and "rubbed" A.C.'s vagina with his hands and 

touched and "licked" her vagina with his mouth. Defendant was holding and 

rubbing her legs when this occurred. Defendant later apologized to her, told her 

not to tell anyone, and claimed he did it because he was lonely. 

Another incident of abuse occurred soon after defendant's girlfriend 

returned from the hospital. Defendant and A.C. were 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 sex" 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 night 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 areas" 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 defendant's recorded 

statement into evidence. It was admitted without objection 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 Charges (Criminal), "Redacted 
7 A-1993-20

Recorded Statement of Defendant" (Oct. 2014) and Model Jury Charges 

(Criminal), "Statements of Defendant (Allegedly Made)" (June 2010). 

Defendant did not raise any objection 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 trying 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 requested 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 of the statement be played and 

did not request any additional jury instructions. The jury resumed deliberations. 
8 A-1993-20

Later that afternoon, the jury delivered its verdict. Defendant was convicted on 

counts one, two, four, and five and acquitted on count three. 

Defendant filed a motion for a new trial pursuant to Rule 3:20-1. He

argued that the verdict was against the weight of the evidence based on the 

"credibility of the victim" and because "there was some conflict with some 

timeline[s], and when these acts alleged[ly] occurred." Defendant also argued 

that there was an issue "on duration, scope, and intensity" of the recorded 

statement, and playing back a portion of the statement 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 inconsistencies . . . 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 arose." 

Following oral argument, the court denied the motion 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 counsel 
9 A-1993-20

and were consistent with the model criminal jury charges. 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 failure to properly consider the 
10 A-1993-20

irreparable harm potentially caused by the allowance 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 also argues the court should have 

granted the motion because of inconsistencies in A.C.’s testimony. We are not 

convinced. 

Rule 3:20-1 provides: 

The trial judge on defendant's motion may grant the

defendant a new trial if required in the interest of 

justice. . . . The trial judge shall not, however, set aside 

the verdict of the jury as against the weight of the 

evidence unless, having given due regard to the 

opportunity of the jury to pass upon the credibility of 

the witnesses, it clearly and convincingly appears that 

there was a manifest denial of justice under the law. 

"[A] motion for a new trial is addressed to the sound 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 Rule 3:20-1. State v. Jackson, 211 N.J. 394, 413-14 (2012). 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-1993-20

Carter, 91 N.J. 86, 96 (1982) (alteration in original) (quoting State v. Sims, 65 

N.J. 359, 373 (1974)). "If the trial court acts under a misconception of the 

applicable law, however, the appellate court need not give such deference." 

State v. Brown, 118 N.J. 595, 604 (1990). 

 The trial court's opinion denying defendant's motion carefully evaluated 

the testimony and evidence presented at trial. The court described the demeanor 

of the witnesses and noted that the jury intently watched 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 consider his arguments 

about the playback of his recorded statement finds no support in the record. In 

fact, the court expressly considered and rejected defendant's arguments relating 

to the statement and the jury instructions the court provided. 

 The evidence produced at trial was plainly sufficient for the jury to 

rationally conclude the State proved the essential elements of the crimes beyond 

a reasonable doubt. A.C. testified defendant touched her breasts and vagina and 

performed oral sex on her before and after she turned thirteen. As the trial court 

noted, defendant's recorded statement was consistent with A.C.'s testimony in 
12 A-1993-20

many respects. The jury was instructed properly on its role in evaluating the 

evidence, including the credibility of the witnesses, and it was the role of the 

jury, not the trial judge, to consider the impact of any alleged inconsistencies in 

A.C.’s testimony. It was not an abuse of discretion to deny defendant's motion 

for a new trial. 

III. 

Defendant next contends the trial court failed to consider arguments raised 

in his motion for a new trial. Defendant first argues he was not permitted to 

present evidence of third-party guilt. This argument is raised for the first time 

on appeal and lacks merit. 

When a defendant raises an issue for the first time on appeal, we review 

the action or omission complained of for plain error. R. 2:10-2; State v. Macon, 

57 N.J. 325, 333 (1971). Under this standard of review, we disregard any error 

or omission "unless it is of such a nature as to have 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 the error led the jury to a 

result it otherwise might not have reached.'" State v. Ross, 229 N.J. 389, 407 

(2017) (quoting State v. Williams, 168 N.J. 323, 336 (2001)). 

A defendant who does not raise an issue before a trial 

court bears the burden of establishing that the trial 
13 A-1993-20

court's actions constituted plain error . . . because "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. Defendant then argues "the 

scenario existed that [he] was at least putting forth 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, however, never asserted any 

such argument in the trial court. In fact, he successfully applied to have any 

references to his son redacted from his recorded statement 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 found her credible. There is no 

reason to conclude the jury would have reached a different verdict if it learned 

defendant's son was also accused of similar acts against 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 not, because defendant actively 
14 A-1993-20

sought to exclude evidence of his son's alleged conduct 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 to 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 also argues the trial court failed to provide an appropriate 

limiting instruction after the portion of his recorded statement the jury requested 

was played back. Specifically, defendant argues "the duration, scope and 

intensity of the interrogation was . . . undermined." We are not persuaded. 

Defendant neither objected to the jury's request to play back a portion of 

defendant's statement, nor did he request any additional 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 testimony 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 admitted 
15 A-1993-20

into evidence, the jury may access it during deliberations, subject to the court's 

instructions on its proper use." State v. Burr, 195 N.J. 119, 133-34 (2008). 

Defendant has not established plain error. It was not an abuse of 

discretion for the trial court to play back the portion of the statement the jury 

requested. The jury previously viewed the entire statement. Playing back the 

requested portion did not undermine the jury's ability 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 appropriately 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 admitting his recorded statement. 

Defendant did not appeal from the court's May 1, 2019 order denying his motion 

to suppress. We will nevertheless consider the merits of his arguments. 

 Defendant contends his statement was not given voluntarily, and the 

detectives improperly minimized the significance of the Miranda warnings by 

referring to them as "protocol." These arguments are not persuasive. 
16 A-1993-20

In reviewing a trial court's decision to admit a defendant's statement to law 

enforcement, we give deference to the court's factual 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 "ordinarily will not disturb the 

trial court's factual findings unless they are 'so clearly mistaken that the 

interests of justice demand intervention and correction.'" 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. State v. Radel, 249 N.J. 

469, 493 (2022). 

 "The administration of Miranda warnings ensures that a defendant's right 

against self-incrimination is protected in the inherently coercive atmosphere of 

custodial interrogation." State v. A.M., 237 N.J. 384, 397 (2019). Accordingly, 

a defendant "must be warned prior to any questioning that [they have] the right 

to remain silent, . . . anything [they say] can be used against [them] in a court of 

law, [and] . . . [they have] the right to the presence of an attorney . . . ." Miranda, 

384 U.S. at 479.
17 A-1993-20

"A confession or incriminating statement obtained during a custodial 

interrogation may not be admitted in evidence unless a defendant has been 

advised of his or her constitutional rights[,]" and provided a "'voluntary, 

knowing[,] and intelligent'" waiver of "any or all of those 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 prosecution 'prove beyond a 

reasonable doubt that the suspect's waiver was knowing, 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)). "Furthermore, 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 enforcement officers that 

overbore the will of a defendant." Hubbard, 222 N.J. at 267. 

"[A] valid waiver does not require that an individual 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 the circumstances surrounding 

the custodial interrogation based on the fact-based assessments of the trial 

court." Ibid. "In the totality-of-the-circumstances inquiry, courts generally rely 

on factors such as 'the suspect's age, education and intelligence, advice as to 
18 A-1993-20

constitutional rights, length of detention, whether the questioning was repeated 

and prolonged in nature and whether physical punishment 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 with 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 testimony from Detective 

Mendelson. The court found defendant "from beginning to end, and most 

especially at the beginning, was cool, calm and collected[,] . . . [understood] 

what his rights were and . . . [understood] the questions 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 and responsive" and he 

"[n]ever invoked his rights nor terminated the interview at any point." The court 

also observed defendant was "very interactive and comfortable and responsive 

to" the detectives. 
19 A-1993-20

The court found the statement was given voluntarily and was not the 

product of coercion. The court acknowledged that the "interrogation was 

lengthy" but found "during the entirety of the statement, . . . [defendant showed] 

that he was a highly intelligent individual and took a thoughtful approach to his 

dialogue . . . ." The court also found: 

[A]t all points during the interview . . . [defendant] 

seemed to be in full control of his faculties, decided 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 incriminating statements, and he was 

misled as to the purpose of the questioning. He also contends that he asked the 

officers what his "options" were, and the officers did not explain the specific 

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 decision was based on substantial 
20 A-1993-20

credible evidence, including the court's assessment of the recorded statement 

and the credibility of the testifying detective. Defendant does not point to 

anything that would cause us to disturb the court's findings. 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 faced, nor did they tell him 

he could go home if he confessed. The officers were not obligated to terminate 

the interview because defendant said he wanted to speak 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 coercion. 

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 voluntarily speaking to us." 

In O.D.A.-C., the Supreme Court held law enforcement "repeatedly 

undermined [the Miranda warnings] throughout the interrogation" 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 

412-13 (internal quotations omitted). 
21 A-1993-20

The detectives in this case did not undermine 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 not 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 so. 

V.

Defendant next contends the court relied on improper factors during 

sentencing and the sentence imposed was manifestly excessive. We are not 

persuaded. 

We employ a deferential standard when reviewing a trial 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 unless: (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 guidelines to the facts of [the] case 

makes the sentence clearly unreasonable so as to shock the judicial conscience." 

Fuentes, 217 N.J. at 70 (second alteration in original) (quoting State v. Roth, 95 

N.J. 334, 364-65 (1984)). 
22 A-1993-20

We assess a trial judge's finding of "aggravating and mitigating factors to 

determine whether they 'were based upon competent credible evidence in the 

record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, 95 N.J. at 

364-65). We are "not to substitute [our] assessment of aggravating and 

mitigating factors for that of the trial court." Ibid. 

We are satisfied the court properly exercised its discretion when analyzing 

and applying the sentencing factors. The court applied aggravating factor two 

based on the gravity and seriousness of harm to a vulnerable victim, aggravating 

factor three based on the fact that defendant engaged 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 aggravating 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 mitigating factor nine because 

it found a risk defendant would commit another offense in applying aggravating 

factor three. The court could have applied mitigating factor seven because 

defendant did not have a criminal record but declined to do so. The court found 
23 A-1993-20

the aggravating factors substantially outweighed the mitigating factors. The 

court's findings of aggravating and mitigating factors 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 concurrently 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 multiple 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 nature and number of 

offenses for which the defendant is being sentenced, whether the offenses 

occurred at different times or places, and whether they involve numerous or 

separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. 

Baylass, 114 N.J. 169, 180 (1989)). They should be applied qualitatively, not 

quantitatively. Id. at 427. A court may impose consecutive sentences even 

though a majority of the Yarbough factors support concurrent 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 specific 
24 A-1993-20

purpose,'" "somewhat interdependent of one another," and "committed within a 

short period of time," concurrent sentences need not be imposed) (citations 

omitted). "When a sentencing court properly evaluates the Yarbough 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 factors and determined 

the sentences imposed on counts two and four would run consecutive to each 

other and consecutive to count one. The offenses were based on separate and 

distinct acts of abuse that occurred at different times. 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 on an act of sexual contact, 

either defendant touching A.C. or A.C. touching defendant, after A.C. turned 

thirteen. The court properly evaluated the Yarbough factors in imposing 

consecutive sentences and we will not disturb the court's decision. The overall 

sentence does not shock the judicial conscience. 

We also reject defendant'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 must merge with another 
25 A-1993-20

offense." State v. Trotman, 366 N.J. Super. 226, 237 (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 State 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 times. The trial court determined 

correctly those charges do not merge. 

The State asks that we remand the matter for the limited purpose of 

providing a statement on the overall fairness of the sentence pursuant to Torres, 

which was decided after defendant was sentenced. There, the Supreme Court 

held "[a]n explicit statement, explaining the overall fairness of a sentence 

imposed on a defendant for multiple offenses . . . is essential to a proper 

Yarbough sentencing assessment." Id. at 268. Because the trial court did not 

have the opportunity to provide an explicit statement 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 arguments, it is 

because they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). 
26 A-1993-20

Affirmed in part and remanded in part. We do not retain jurisdiction.