                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5737-14T3



STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

BRIDGETTE N. ARCHUT,

     Defendant-Appellant.
________________________________

              Submitted March 29, 2017 – Decided May 23, 2017

              Before Judges Accurso and Lisa.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              13-11-3428.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Michele A. Adubato, Designated
              Counsel, on the brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for respondent (Linda A. Shashoua,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant was charged in a two-count indictment with fourth-

degree bias intimidation, N.J.S.A. 2C:16-1a, based on committing
the   petty     disorderly    persons    offense    of     harassment,   N.J.S.A.

2C:33-4 (Count One), and fourth-degree bias intimidation, N.J.S.A.

2C:16-1a, based on committing the disorderly persons offense of

simple assault, N.J.S.A. 2C:12-1a (Count Two).               Defendant's motion

to    dismiss    the    indictment   was      denied.      Her    application   for

admission to the Pretrial Intervention (PTI) program was denied,

and her appeal of that decision to the Law Division was also

denied.

       Defendant went to trial and the jury found her guilty on

Count One of harassment, but not guilty of bias intimidation.                     On

Count Two, the jury found her guilty of simple assault and bias

intimidation.          Defendant's post-trial motion for a judgment of

acquittal notwithstanding the verdict or, alternatively, a new

trial, was denied.

       The court sentenced defendant on Count One to a one-year

probationary term.          On Count Two, defendant was sentenced for

simple assault to probation for one year and for bias intimidation

to two years' probation, concurrent to each other but consecutive

to the sentence imposed on Count One.              The court also imposed all

mandatory       penalties    as   well   as   an   order    for   restitution     to

compensate the victim for expenses incurred for counseling.

       On appeal, defendant presents the following arguments:



                                         2                                 A-5737-14T3
         POINT I

         THE PRESENTATION TO THE GRAND JURY WAS
         INSUFFICIENT TO SUPPORT THE INDICTMENT AGAINST
         DEFENDANT AND SHOULD HAVE BEEN DISMISSED ON
         DEFENDANT'S MOTION.

         POINT II

         IT WAS A PATENT AND GROSS ABUSE OF DISCRETION
         FOR THE DEFENDANT TO BE DENIED ENTRY INTO THE
         PRE-TRIAL INTERVENTION PROGRAM.

         POINT III

         THE COURT'S REFUSAL TO ASK THE VOIR DIRE
         QUESTION REQUESTED BY THE DEFENSE WAS ERROR.

         POINT IV

         THE DEFENDANT'S MOTION      FOR JUDGMENT OF
         ACQUITTAL AND NEW TRIAL     SHOULD HAVE BEEN
         GRANTED.

         POINT V

         BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO
         SUPPORT A VERDICT OF BIAS INTIMIDATION BEYOND
         A REASONABLE DOUBT, THE GUILTY VERDICT MUST
         BE VACATED.

         POINT VI

         THE THREE[-]YEAR TERM OF PROBATION FOR A
         CONVICTION FOR THE PETTY DISORDERLY PERSONS
         OFFENSE OF HARASSMENT AND ONE COUNT OF BIAS
         INTIMIDATION BOTH OCCURING AT THE SAME TIME
         AND PLACE WAS EXCESSIVE AND SHOULD BE MODIFIED
         AND REDUCED. (Not raised below).

    We reject Points I through V and affirm the convictions.     We

agree with Point VI, and modify defendant's sentence.



                               3                          A-5737-14T3
                                         I.

     These are the facts adduced at trial.              On the evening of June

9, 2013, twelve-year-old C.B. and his seventeen-year-old brother

F.B., together with two girls who were F.B's friends, seventeen-

year-old K.E. and K.G. (whose age is not disclosed by the record)

were riding bicycles in a county park located in their hometown

of Haddon Heights Township.          C.B. and F.B. are African-American;

the two girls accompanying them are Caucasian.

     At    that   time,   defendant,         eighteen-year-old      Bridgette     N.

Archut, was a passenger in a car with four other young people.

All of the occupants are Caucasian.             They were driving around the

same area as the bicyclists, and were looking for something to do.

Defendant   was   seated     in    the   middle    of     the   rear   seat,    with

passengers on both sides of her, and the two front seats were

occupied.

     The    car   occupied    by    defendant      came    upon    three   of   the

teenagers, namely the two brothers and one of the girls.                   At that

particular moment, the other girl had become slightly separated

from the group.       As they rode by, the rear seat passenger to

defendant's left, A.P., a thirteen-year-old girl, yelled out a

racial slur, referring to a little N_ _ _ _ _.                  It was obvious to

the bicyclists that this slur was directed at twelve-year-old

C.B., who at that time was a sixth grader and was approximately

                                         4                                 A-5737-14T3
four feet six inches in height.        As C.B. described it in his

testimony,    "[S]omeone   screamed   at   me   that   I   was    a    little

N_ _ _ _ _."     He explained that the slur was obviously directed

at him: "I was the only one around and I was, I guess I was the

black person and I was the only little kid that was at the park

at the time."      C.B. explained his immediate feeling when this

occurred: "I feel like they're trying to degrade me and I felt bad

about myself and I thought they tried to take my right away as

like being a person."

     C.B.'s older brother, F.B., chased after the car on his

bicycle.    He was unable to catch up with the car, and, because of

this action, he became separated from the other bicyclists in his

group.     Meanwhile, inside the car, the rear-seat passengers were

all laughing about the incident.      In her subsequent statement to

the police, which was introduced in evidence at trial, defendant

said that after the slur, "[e]veryone was laughing."              At trial,

she denied that she was laughing.

     The driver of the car testified at trial that all of the back

seat occupants, specifically including defendant, were urging her

to circle around and "go back, go back, go back."                When asked

whether defendant was one of the people saying that, the witness

answered in the affirmative.      The driver did circle around and

return to where the bicyclists had been, arriving at that location

                                  5                                   A-5737-14T3
about four or five minutes after the slur had been made.    By this

time, the girl who had been separated from the group had caught

up with the other girl and C.B.    F.B. remained separated from the

group because of his unsuccessful pursuit of the car.    Therefore,

the car came upon a group consisting of twelve-year-old C.B. and

the two older Caucasian girls.

     K.E. testified that the car was proceeding "pretty fast," but

did not estimate an actual speed.      As they rode by the group,

defendant threw a cup containing ice and water, secured by a lid,

out of the window.    It hit the pavement two feet from C.B. and

"exploded."   Some of the ice hit C.B.'s foot.   C.B. explained his

reaction: "I was scared.    I felt like I was being attacked."     He

believed the projectile was directed at him because "it was close

to [him] and [the two girls] were ahead of me a little bit."

     After this object was thrown, the car drove off to a parking

lot in the park, where it remained.     C.B.'s older brother called

the police after rejoining his friends and C.B. The police located

the car and took defendant and others to the police station for

statements.   Defendant initially denied that any racial slur was

made or that she or anyone else threw anything out of the window.

But she eventually admitted that the slur was made and that the

car made a second pass at the group, at which time she threw the

cup out of the window.     She denied that she was throwing the cup

                                  6                         A-5737-14T3
at anyone, saying that her reason for throwing it out was that

"[w]e didn't need it."

                                    II.

     Defendant's arguments in Points I and III lack sufficient

merit to warrant extended discussion in a written opinion.                 R.

2:11-3(e)(2).    We make these brief comments.

     Defendant argues that her motion to dismiss the indictment

should have been granted because the evidence presented to the

grand   jury   was   insufficient   to    support   the   charges   in   the

indictment.    The State's evidentiary obligation in the indictment

process is to produce "'some evidence' as to each element of a

prima facie case."     State v. Vasky, 218 N.J. Super. 487, 491 (App.

Div. 1987) (citation omitted).           To this end, "every reasonable

inference is to be given to the State."        State v. N.J. Trade Waste

Ass'n, 96 N.J. 8, 27 (l984).        The judicial authority to dismiss

an indictment may not be exercised except on the "clearest and

plainest ground."       State v. Weleck, 10 N.J. 355, 364 (1952)

(quoting State v. Davidson, 116 N.J.L. 325, 328 (Sup. Ct. 1936)).

A reviewing court will set aside a trial court's decision on

whether to dismiss an indictment only upon an abuse of discretion.

State v. Warmbrun, 277 N.J. Super. 51, 59-60 (App. Div. 1994),

certif. denied, 140 N.J. 277 (1995).



                                     7                              A-5737-14T3
     We have reviewed the grand jury transcript.             The State

produced as its only witness a detective from the Camden County

Prosecutor's Office who was involved in the investigation of this

matter.   She   described    the   events   substantially   as   we   have

described them above.   We are satisfied that this presentation

complied with the required evidential standard, presenting at

least some evidence as to each element of each offense.

     In Point III, defendant argues that the trial court erred in

failing to ask prospective jurors the following question, which

defendant requested: "Have you, or members of your family or

friends ever been the victim of a hate crime?      (i.e. a crime based

on race, ethnicity, or sexuality)?"           The judge declined the

request, concluding that other standard questions and instructions

to jurors, together with a description of the crime and reading

of the indictment, adequately covered the subject.

     Trial courts are granted broad discretionary authority in

conducting jury voir dire.    State v. Papasavvas, 163 N.J. 565, 595

(2000).   A reviewing court "should focus only on determining

whether 'the overall scope and quality of the voir dire was

sufficiently thorough and probing to assure the selection of an

impartial jury.'"    State v. Winder, 200 N.J. 231, 252 (2009)

(quoting State v. Biegenwald, 106 N.J. 13, 29 (1987)).            We are

satisfied from our review of the record that the voir dire process

                                    8                             A-5737-14T3
was    thorough     and    adequately        addressed        potential       juror      bias

relating to the nature of these bias intimidation charges.                               The

trial judge did not abuse his discretion in refusing to ask the

supplemental question proposed by the defense.

                                         III.

       We next consider defendant's argument in Point II that the

trial court erred in failing to find that the prosecutor committed

a    gross    and   patent     abuse    of    discretion          in   denying     her   PTI

application.        Defendant argues that she should have been admitted

to    PTI    "[b]ased     on   the   facts        of   this   case      and   defendant's

unblemished prior history."

       PTI determinations are guided by the seventeen factors listed

under N.J.S.A. 2C:43-12(e), and by the Guidelines for Operation

of Pretrial Intervention in New Jersey, Pressler & Verniero,

Current      N.J.    Court     Rules,        Guidelines       to       R.   3:28   (2017).

Defendant's application was reviewed by the Criminal Division

Manager's Office, after which Senior Probation Officer Erica K.

Wade issued a denial letter on February 6, 2014.

       Denial was based on Guideline 3(i)(3), which provides that

if the crime was "deliberately committed with violence or threat

of    violence      against    another       person      .    .    .    the   defendant's

application should generally be rejected."                             Wade went on to

describe the factual circumstances and concluded that "[t]his

                                              9                                     A-5737-14T3
behavior by the defendant was clearly committed with deliberate

violence towards the victims and injurious consequences which

falls within Guideline 3(i)(3)."          Wade further cited N.J.S.A.

2C:43-12(e)(1), (2), (7) and (14), which "require[] consideration

of the nature of the offense, needs and interests of the victim

and society and whether or not the crime is of such a nature that

the value of supervisory treatment would be outweighed by the

public need for prosecution."        Finally, she relied on N.J.S.A.

2C:43-12(e)(10), requiring "consideration of whether or not the

crime is of an assaultive or violent nature[,] whether in the

criminal act itself or in the possible injurious consequences of

such behavior."

      Wade concluded, upon consideration of the materials submitted

by   defendant,   including   her   age   of   nineteen   at   the   time   of

application, that "[d]espite these considerations and in view of

Ms. Archut's actions and behavior towards the victims, it is my

opinion that she is not a suitable risk or candidate for PTI.               The

application is denied."

      The prosecutor agreed with the Criminal Division Manager's

assessment and joined in the denial.           Defendant appealed to the

Law Division.     After hearing oral argument, the court found that

the prosecutor had not clearly and convincingly committed a gross

and patent abuse of discretion in denying the application.

                                    10                               A-5737-14T3
     The     court       noted    that     the     racial     slur    constituted

"reprehensible conduct," which, in the fact pattern presented, was

adopted by defendant when she threw the cup full of ice and water

at the victim as part of the continuing episode.                  The court said

"that's    what    the   need    for   prosecution      is   versus   supervisory

treatment, to send a strong message that this type of conduct will

not be tolerated in the future."              The court was further satisfied

that defendant's conduct was indeed assaultive conduct and that

the presumption against PTI enrollment for such conduct was not

overcome.        Recognizing     the     very    high   deference     afforded    to

prosecutors in PTI determinations, the judge denied defendant's

appeal.

     Courts afford the decision of a prosecutor to deny PTI great

deference.       State v. Leonardis, 73 N.J. 360, 381 (1977).               "[T]he

level of deference which is required is so high that it has been

categorized as 'enhanced deference' or 'extra deference.'"                    State

v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (citing State

v. DeMarco, 107 N.J. 562, 566 (1987); State v. Dalglish, 86 N.J.

503, 513-14 n.1 (1981); State v. Hoffman, 224 N.J. Super. 149, 155

(App. Div. 1988)).        Judicial review of a PTI rejection exists "to

check     only    the    most    egregious       examples    of   injustice      and

unfairness."      DeMarco, supra, 107 N.J. at 566 (quoting Leonardis,

supra, 73 N.J. at 384).

                                         11                                A-5737-14T3
       Before a reviewing court will suspend criminal proceedings

absent   prosecutorial      consent,    "a    defendant     must   'clearly     and

convincingly establish that the prosecutor's refusal . . . was

based on a patent and gross abuse of his discretion.'"                   Dalglish,

supra, 86 N.J. at 509, (quoting Leonardis, supra, 73 N.J. at 382).

Three categories of abuse of discretion in this context have been

recognized, and the standard for when these abuses rise to the

level of "patent and gross" enunciated:

            Ordinarily, an abuse of discretion will be
            manifest if defendant can show that a
            prosecutorial veto (a) was not premised upon
            a consideration of all relevant factors, (b)
            was based upon a consideration of irrelevant
            or inappropriate factors, or (c) amounted to
            a clear error in judgment. In order for such
            an abuse of discretion to rise to the level
            of "patent and gross," it must further be
            shown that the prosecutorial error complained
            of will clearly subvert the goals underlying
            Pretrial Intervention.

            [State v. Bender, 80             N.J.   84,    93   (1979)
            (citation omitted).]

       A reviewing court may not substitute its discretion for that

of the prosecutor.       State v. Waters, 439 N.J. Super. 215, 237

(App. Div. 2015).      Our scope of review is "severely limited" in

light of the enhanced deference enjoyed by prosecutors.                    Id. at

225 (quoting State v. Negron, 178 N.J. 73, 82 (2003)).

       The presumption to deny PTI created by Guideline 3(i) can

only   be   overcome   if    a   defendant     shows      "compelling    reasons"

                                       12                                  A-5737-14T3
consisting   of    "something   extraordinary     or    unusual,   something

'idiosyncratic and in [the defendant's] background'".              State v.

Lee, supra, 437 N.J. Super. at 563 (quoting State v. Nwobu, 139

N.J. 236, 252 (1995) (alteration in original)).

     We are satisfied, as was the trial judge, that the prosecutor

considered   all    relevant    factors,    and   did   not   consider    any

irrelevant factors, nor did the prosecutor commit a clear error

in judgment in rejecting this application. The trial court applied

the correct legal standard and did not err in denying defendant's

appeal of her PTI rejection.

                                    IV.

     Defendant's arguments in Points IV and V are related, namely

that the trial court erred in denying her motion for judgment of

acquittal or a new trial, and that the evidence presented at trial

was insufficient to support a verdict of bias intimidation beyond

a reasonable doubt.     We address the two points together.

     Defendant begins by relying upon the apparent inconsistency

between the verdicts on Counts One and Two.         Defendant argues that

"the failure of the jury to find an intent to intimidate based on

race in Count One [harassment] established there was insufficient

evidence to prove that required element on Count Two [simple

assault]."    The     State    counters    that   the   verdicts   were   not

necessarily inconsistent on the two counts, but even if they were,

                                    13                               A-5737-14T3
the bias intimidation conviction should not be disturbed because

it is supported by sufficient evidence from which the jury could

have reasonably found guilt beyond a reasonable doubt.

     Defendant    then   argues   that    the       trial   evidence    was   not

sufficient to support a conviction of bias intimidation on Count

Two beyond a reasonable doubt.      In her appellate brief, defendant

sets forth the statutory provisions identifying the elements of

bias intimidation and simple assault, as well as the statutory

definition   of   "bodily   injury,"     and    then    makes   the    following

argument:

            The defendant's action in throwing a cup of
            ice water out of a car window did not cause
            or attempt to cause any bodily injury or
            serious bodily injury.    No one was injured.
            Ms. Archut, while admitting she threw the cup,
            denied that it was aimed at anyone. Even if
            it was, at best, some ice struck [C.B.]'s
            shoe.   Proof of simple assault is seriously
            lacking.

            The proofs were also deficient as to
            defendant's intent.       There was nothing
            presented to support a purpose of Ms. Archut
            to intimidate anyone.     Ms. Archut made no
            remarks or statements when [A.P.] yelled out
            the "n" word or later when she threw the cup.
            The record is devoid of any proofs of a purpose
            to intimidate. The reaction or interpretation
            of the victim of the act is insufficient to
            establish such a purpose.

     We address defendant's second argument first.                    In a post-

trial   motion,   defendant   moved      for    a    judgment   of     acquittal


                                   14                                    A-5737-14T3
notwithstanding the verdict or for a new trial.              The judge denied

the motion.      When considering such a motion, what

           the trial judge must determine is whether,
           viewing the State's evidence in its entirety,
           be that evidence direct or circumstantial, and
           giving the State the benefit of all its
           favorable testimony as well as all of the
           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).]

In reviewing the denial of such a motion, the appellate court

applies the same standard to determine if a defendant should have

been acquitted.      State v. Moffa, 42 N.J. 258, 263 (1964).

     Simple assault does not require the actual causing of an

injury.    An attempt to cause a bodily injury is sufficient.

N.J.S.A. 2C:12-1a(1).      The definition of "bodily injury" requires

nothing more than "physical pain."         N.J.S.A. 2C:11-1a.       The jury

could reasonably have found that defendant threw the cup at C.B.

She missed him by only two feet, the two girls were somewhat

separated from C.B., and the occupants of the car had returned to

the location where the bicyclists were as a follow-up to the

initial   slur    that   had   been   directed   at   C.B.      Evidence   was

presented, including defendant's statement to the police within

an hour after the incident, that "everyone" was laughing after the

original slur.      And, the driver's unrefuted testimony that all


                                      15                              A-5737-14T3
three      of   the    backseat     passengers,      specifically       including

defendant, urged her to go back for another pass at the bicyclists

was before the jury.

      Putting    all    of   this   evidence      together,    the    jury    had    a

reasonable basis to find that defendant purposely threw the cup

at C.B., intending that it hit him and cause him physical pain (or

some greater injury).          It is also noteworthy that the cup was

described in the testimony as large, and it was thrown with the

lid on it.      As a result, all of the weight of the ice and water

was held in until the cup made contact.                 As it was described in

the trial testimony, when the cup hit the pavement it "exploded,"

with the lid flying off and the contents being expelled.                         This

object, thrown in this manner from a rapidly moving car, was

certainly capable of causing physical pain (or a greater injury)

had   it    struck    C.B.    Therefore,      the   evidence    was    more      than

sufficient to establish beyond a reasonable doubt the offense of

simple assault.

      As to proof of intent to intimidate based on race, the bias

intimidation      statute    provides       for   the    following     permissive

inference: "Proof that the target of the underlying offense was

selected by the defendant, or by another acting in concert with

the defendant, because of race . . . shall give rise to a permissive

inference by the trier of fact that the defendant acted with a

                                       16                                    A-5737-14T3
purpose to intimidate an individual . . . because of race."

N.J.S.A. 2C:16-1b.   This provision was charged to the jury, and

the fact pattern established by the evidence could reasonably have

induced the jury to apply it.

     When the slur was made by the person sitting next to defendant

in the car, the jury could have believed the testimony that all

of the backseat passengers, including defendant, were laughing

about it and urging the driver to circle around and pass by the

bicyclists again.    Throwing the cup at the same victim who was

targeted by the racial slur as part of this continuum of events,

could reasonably lead the jury to infer that it was not only

defendant's purpose to injure C.B., but to intimidate him because

of his race.

     We are satisfied that all necessary elements of the underlying

simple assault charge, as well as the bias intimidation charge

based upon simple assault, are supported by sufficient credible

evidence in the record to establish guilt beyond a reasonable

doubt.

     This brings us to defendant's argument regarding inconsistent

verdicts.   Assuming, for purposes of our analysis, that there was

an inconsistency between the verdicts on Counts One and Two, such

verdicts will be upheld so long as there is sufficient evidence

to support the convictions beyond a reasonable doubt.      Dunn v.

                                17                          A-5737-14T3
United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed.

356, 359 (1932); State v. Banko, 182 N.J. 44, 54-55 (2004).                     An

inconsistent verdict may be the product of jury nullification,

mistake, compromise, or lenity, and so, is not questioned.                Banko,

supra, 182 N.J. at 54-55.

     We   have     already     explained    why     the    bias   intimidation

conviction   on    Count   Two   is   supported     by    sufficient    credible

evidence as to all elements, including a purpose to intimidate

based on race.     We will not speculate on why the jury did not find

a purpose to intimidate based on race as to the harassment charge

in Count One.      It could have been because of mistake, compromise,

giving defendant a break, nullifying the State's action in charging

her with that offense, or any other reason.                 Regardless of the

reason, it does not impair the viability of the bias intimidation

conviction based on simple assault in Count Two.

     Accordingly, there is no basis to disturb the verdicts based

upon insufficiency of evidence or upon any perceived inconsistency

in the verdicts.

                                       V.

     Finally,      we    address      defendant's    sentencing        argument.

Defendant does make some arguments regarding the applicability of

various aggravating and mitigating factors.                However, the trial

court   found     that   the   mitigating    factors      preponderated      over

                                       18                                A-5737-14T3
aggravating    factors   and   that    a   non-custodial   sentence   was

appropriate.    On appeal, defendant does not argue that either a

one-year non-custodial probationary sentence on Count One or the

two-year non-custodial probationary sentence on Count Two were

excessive.     The argument is limited to the fact that the court

imposed the sentences consecutively.        Defendant argues that under

the guidelines set forth in State v. Yarbough, 100 N.J. 627 (1985),

the sentences should have been run concurrent, resulting in an

aggregate non-custodial probationary sentence of two years.             We

agree.

     At the time of sentencing, the judge said very little by way

of Yarbough analysis:

               One thing -- one other thing I should
          place on the record.      That the Court did
          analyze Yarbough in making a determination to
          run   the    harassment    probationary   term
          consecutive to the convictions under count
          two. I do find that the jury had spoken and
          determined that these were separate offenses.
          I believe that it's important that that be
          acknowledged    that   these    are   separate
          violations that were proven against this
          Defendant.

               . . .   I understand the argument that
          this was sort of all one ongoing event, but I
          think it's important to acknowledge the
          separate offenses as found by the jury and
          that's the basis for which I determined that
          the harassment should run consecutive to the
          simple   assault    by   bias    intimidation
          convictions.


                                  19                             A-5737-14T3
     In essence, the judge merely stated that because the jury

found defendant guilty of two separate offenses, they should be

sentenced consecutively.     That is an insufficient reason.     The

question is not whether two or more offenses have been committed,

but whether the sentences on those offenses should run concurrently

or consecutively.   In Yarbough, the Court listed four factors that

are relevant to this case:

               (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.

          Yarbough, supra, 100 N.J. at 644.

     For conviction of bias intimidation based on simple assault,

the theory of the State's case required linkage between the slur

and the throwing of the cup four or five minutes later.     In her

summation, the prosecutor argued accordingly:

               The cup itself hurled at him right on the
          heels, or after however many minutes after
          this same group of people went by and the slur
          was yelled at him, that's a continuing
          communication to him.    That's a continuing
          derogation and attack upon him.

                                20                          A-5737-14T3
              Like if I give you the middle finger, you
         know I'm being offensive. You know I'm being
         rude. I'm saying something nonverbally.

              And the connection between the slur being
         yelled and the cup being hurled at him, that
         makes it a continuing course of conduct. It's
         harassment.

              So, if I prove simple assault and I prove
         harassment, I still got one more job. I've
         got to prove that those things were done with
         the purpose to intimidate, to frighten [C.B.]
         for one reason only, because he was black.
         That's what I have to prove and the way I'm
         going to prove that is through the witnesses
         and the words of the Defendant.

              But there is a portion of the law that
         says if you find, if you believe that [C.B.]
         was targeted, he was the one they chose to
         yell this slur at, he was the one she chose
         to throw the cup of water at.    If you find
         that she did those things just because he was
         black, then you can infer her purpose was to
         intimidate him. That's why she picked a black
         person.

    In its appellate brief, the State presents a similar argument

to us:

         The evidence showed a direct connection
         between the racial slur and defendant's
         actions, her culpable intent was clear from
         the totality of the circumstances . . . and
         finally, intent was supported by the favorable
         inference permitted in the law to find that
         if defendant targeted the victim because of
         his race, her purpose was to intimidate him.

    While we might in some circumstances remand to the trial

court to reconsider the consecutive/concurrent sentencing issue


                              21                          A-5737-14T3
with a more thorough statement of reasons, we are convinced that

in the circumstances of this case, the Yarbough factors require

concurrent sentencing.   The crimes and their objectives were not

predominantly independent of each other.   Indeed, as argued by the

prosecutor, they were inextricably intertwined, with evidence from

one being necessary to convict on the other.   Only one of the two

crimes involved an act of violence or threat of violence, namely,

simple assault.    Therefore, there were not separate acts of

violence.   The crimes were not committed at different times or

separate places.   They were committed within four or five minutes

of each other at the very same place, all as part of an ongoing

continuum of activity by defendant and her cohorts.   Finally, the

crimes involved only one victim.

     Accordingly, we direct than an amended judgment of conviction

be entered to reflect that the sentences on Counts One and Two be

served concurrently.

     Affirmed as modified and remanded.




                                22                          A-5737-14T3
