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Concurrent v. Consecutive Sentences

Pursuant to N.J.S.A. § 2C:44-5(a)

When multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . , such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence, except that:

 

. . . .

 

There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses.

 

[Id.]

The decision to impose concurrent or consecutive terms is left to the sound discretion of the trial judge.  State in re T.B., 134 N.J. 382, 385 (1993).  However, in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.2d 308 (1986), partially superceded by N.J.S.A. 2C:44-5(a), the New Jersey Supreme Court developed factors for courts to consider when exercising said discretion.  Id.  In Yarbough, the New Jersey Supreme Court concluded that “in fashioning consecutive or concurrent sentences under the Code, sentencing courts should be guided by the Code’s paramount sentencing goals that punishment fit the crime, not the criminal” Id. at 630. The Yarbough factors “bring rationality to the process and to further the goal of sentencing uniformity.”  State v. Abdullah, 184 N.J. 497, 513 (2005). “The Yarbough factors serve much the same purpose that aggravating and mitigating factors do in guiding the court toward a sentence within the statutory range.” Also, “the focus of the court should be on the fairness of the overall sentence.” State v. Miller, 108 N.J. 112, 121 (1987). Moreover, “The Code’s general purpose . . . includes safeguarding against excessive, disproportionate or arbitrary punishment.”

Pursuant to Yarbough, the sentencing court must consider the following:

(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 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;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Id.]

Factor number six is no longer applicable because L. 1993, c. 223 amended N.J.S.A. § 2C:44-5(a) to provide that “[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses for multiple offenses.”  L. 1993, c. 223; N.J.S.A. § 2C:44-5(a); State v. Carey, 168 N.J. 413, 423 (2001). Notwithstanding the foregoing, the other factors remain as a guide to sentencing courts.  State v. Pennington, 154 N.J. 344, 361-62 (1998).  As stated by the New Jersey Supreme Court in State v. Sutton, 132 N.J. 471, 485 (1993):

 

 

 

Our decision in [Yarbough], should guide the court’s determination of whether the sentences should be concurrent or consecutive. Our understanding of N.J.S.A. § 2C:44-5 is consistent with the Yarbough principle that, ordinarily, separate crimes deserve separate punishment. . . . Nevertheless, the imposition of consecutive terms is not automatic but rather is informed by an exercise of judicial discretion that considers the factors outlined in Yarbough . . . . For example, Yarbough encourages sentencing courts to consider whether ‘the crimes and their objectives were predominantly independent of each other,” and whether “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.’ In addition, in determining whether the terms should be concurrent or consecutive, the focus of the court should be on the fairness of the overall sentence.

[Id. (quoting State v. Yarbough, 100 N.J. at 464; (citing State v. Miller, 108 N.J. 112, 121(1987).]

In State v. Miller, 108 N.J. 112, 122 (1987), the New Jersey Supreme Court noted:

[F]actors relied on to sentence a defendant to the maximum term for each offense should not be used again to justify imposing those sentences consecutively. Where the offenses are closely related, it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively, especially where the second offense did not pose an additional risk to the victim. The focus should be on the fairness of the overall sentence.

[Id.]