Frequently, the prosecutor may argue that all or some counts of an indictment be made to run consecutively and not concurrently to one another. Defense counsel must oppose this. But how? What follows is the case law and an analysis on the criteria that judges must follow in deciding whether a sentence should be made to run concurrently or consecutively.

The issue arises when a defendant is sentenced for two more more crimes at the same time. N.J.S.A. 2C:44-5(a) allows the judge to decide if those sentences should run concurrently or consecutively. To channel that discretion and promote consistency in sentencing, the New Jersey Supreme Court outline the following criteria in State v. Yarbough, 100 N.J. 627 (1985):

(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:

(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 indicated 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;

(5) Successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.

[Yarbough, supra, 100 N.J. at 643-44].

In response to a number of decisions made under Yarbough guideline (6), the Legislature amended 2C:44-5a(2) to provide that “[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses.” While that amendment “effectively eliminated the bar to consecutive sentences imposed by Yarbrough,” State v. Brown, 138 N.J. 481, 559 (1994), “it has not superseded the requirement of principled sentencing.” State v. Pennington, 154 N.J. 344, 361-62 (1998) (remanding for re-sentencing where trial court imposes consecutive terms for two burglaries on top of a maximum extended-term for kidnapping).

As the Appellate Division stated in State v. Candelaria, 311 N.J. Super. 437 (App. Div. 1998), the Code’s general purpose “still includes the safeguarding of offenders against excessive, disproportionate or arbitrary punishment.” Id. at 454. Indeed, “… the focus of the court should be on the fairness of the overall sentence.” State v. Abdullah, 184 N.J. 497, 515 (2005).

The Yarbough factors have been the subject of much litigation which has given rise to an extensive amount of case law that has interpreted them more fully. For example, the New Jersey Supreme Court made clear that it did not intend for the “no free crimes” guideline to “eliminate the concurrent sentence from a court’s sentencing options,” nor “require the court automatically to impose consecutive sentences for multiple offenses.” State v. Rogers, 124 N.J. 113, 119-21 (1991). Rather, in determining whether sentences are to be consecutive or concurrent, “the court should consider all of the Yarbough guidelines …” Rogers, supra, 124 N.J. at 121.

Guideline 3(c) is so vague that it has often been described as a riddle, wrapped in a mystery, inside an enigma. It is important to recognize that just because two or more crimes did not occur at the same exact time and at the same exact place, that does not automatically mean that they were committed at different times and at separate places for the purpose of negating the finding of a single period of aberrant behavior. As stated in Guideline 3(c), all that’s required in order to establish a single period of aberrant behavior is that the crimes be committed so closely in time and place.

By all means, be certain not to overlook N.J.S.A. 2C:44-5h, which carves out an exception that allows a judge to exercise discretion in not imposing a consecutive sentence. Under this exception, a judge may withhold the imposition of a consecutive sentence if such a sentence would cause a serious injustice — one which overrides the need to deter such conduct by others. In making that decision, the character and conditions of the defendant must be considered. N.J.S.A. 2C:44-5h. In making this argument, defense counsel should argue that the character and conditions of the defendant are such that imposing a consecutive sentence would cause a serious injustice to him.

Finally, as an added safeguard, should the judge decide to impose even one consecutive sentence, the New Jersey Supreme Court requires the judge to give a separate statement of reasons for doing so. State v. Abdullah, 184 N.J. 497, 515 (2005), State v. Miller, 108 N.J. 112, 122 (1987). Good luck!