                                NOT FOR PUBLICATION WITHOUT THE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-4144-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARCUS L. REDDICK, a/k/a
MARCUS LEE REDDICK,

     Defendant-Appellant.
_____________________________

                    Submitted January 8, 2019 – Decided March 13, 2019

                    Before Judges Fisher and Suter.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Salem County, Indictment No. 15-06-0306.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alyssa A. Aiello, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    John T. Lenahan, Salem County Prosecutor, attorney
                    for respondent (David Galemba, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant was arrested at a motor vehicle stop for a controlled

dangerous substance (CDS) offense. As a result of a search of his person by

three police officers, defendant filed complaints against the three officers (and,

mistakenly, a fourth) for sexual assault; those charges were later dismissed and

the State, in turn, charged defendant with four counts of fourth-degree false

swearing, N.J.S.A. 2C:28-2(a). At the conclusion of a bench trial, defendant

was acquitted of one and convicted of three counts of false swearing; he later

pleaded guilty to third-degree possession of a controlled dangerous substance

(CDS) with the intent to distribute, N.J.S.A. 2C:35-5(b)(3). At sentencing, the

judge directed that two of the three false-swearing convictions run

consecutively to each other and consecutively to the sentence imposed on the

CDS conviction.      We affirm defendant's false-swearing convictions1 but

conclude the terms imposed on the false-swearing convictions should all have

been concurrent.

      On January 27, 2015, defendant was a passenger in a vehicle that was

stopped because it was being driven without its headlights in operation. Three

police officers, a sergeant and two patrol officers, approached the vehicle; one

1
  It is not clear whether defendant's appeal – when initiated – sought review of
the judgment of conviction in the CDS matter. But it is clear the arguments in
defendant's brief challenge only the judgment in the false-swearing matter.


                                                                         A-4144-16T1
                                       2
claimed to smell burnt marijuana. When asked, defendant told the officers he

had marijuana in his pocket. Defendant was arrested, and a search of the

vehicle uncovered a gun in the center console.

       At the scene, a woman who knew the vehicle's driver, approached the

sergeant and informed him that defendant had "drugs in his ass . . ."; on the

way to the police station, the sergeant advised defendant of his Miranda2 rights

and told him he knew he had more drugs. Defendant denied it.

       Once at the police station, officers took defendant to a holding cell,

where defendant was thoroughly searched, including in the buttocks area. He

took offense, complaining this search was illegal and excessive. The officers

had defendant sit while they called the prosecutor's office to seek guidance

about the search's continuation. The police sergeant testified he was told he

did not require a warrant but not to continue the search on camera "in case . . .

there was any exposure of . . . skin or private area" because a female

dispatcher was on duty.

       The police sergeant told defendant of what he had been advised and

stated the search would continue in a nearby bathroom.         Defendant again



2
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                        A-4144-16T1
                                      3
protested, saying several times: "I would like to stay on camera, please." The

police sergeant denied that request but said he would run an audio recording.

      The police sergeant testified that during the subsequent search he "used

[defendant's] own pants" to grab a plastic bag of cocaine, so no part of

defendant was exposed. The sergeant acknowledged he "technically" reached

into defendant's pants to recover the bag.

      During the search, defendant repeatedly called out to the driver of the

vehicle, who was in an adjacent room, protesting and describing what the

sergeant was doing. After the search, defendant continued to complain the

search was illegal and that he had been physically violated.

      About two weeks later, defendant filed complaints against the police

sergeant and one of the patrol officers, alleging they sexually assaulted him by

digitally penetrating his rectum during the search. He filed a third complaint,

which he intended to direct at the other involved patrol officer, but defendant

mistakenly named an officer not on duty that night.         Realizing his error,

defendant returned two weeks later to amend the complaint.            Defendant

testified at the false-swearing trial that he attempted to withdraw the erroneous

third complaint, but the court administrator told him only a prosecutor had that

authority. As a result defendant filed a fourth complaint, this time naming the


                                                                        A-4144-16T1
                                       4
other officer involved in his arrest and search. All four of these complaints

were dismissed when a judge found a lack of probable cause.

      Upon the dismissal of the complaints asserted against the police officers,

defendant was charged with four counts of false swearing. Those charges were

the subject of a three-day bench trial at the conclusion of which the judge

acquitted defendant of the one mistakenly-filed false-swearing complaint, but

convicted him on the other three.

      With the disposition of the false-swearing charges, defendant entered

into a plea agreement pursuant to which he pleaded guilty to CDS possession

with the intent to distribute and was sentenced to a six-year prison term with a

three-year period of parole ineligibility. The judge also sentenced defendant

on the three false-swearing convictions to one eighteen-month prison term,

with an eight-month period of parole ineligibility, and two fifteen-month

prison terms, with seven and one-half months of parole ineligibility. The latter

two terms were ordered to run concurrently with each other but consecutively

to the eighteen-month term with an eight-month parole ineligibility period.

The judge also ordered that the prison term imposed on the CDS conviction

run consecutively to the aggregate of the false-swearing terms.

      Defendant appeals, and argues:


                                                                       A-4144-16T1
                                       5
               I. [DEFENDANT'S] CONVICTIONS MUST BE
               REVERSED BECAUSE, IN VIOLATION OF
               [DEFENDANT'S] FIFTH AMENDMENT RIGHT
               AGAINST SELF-INCRIMINATION, THE TRIAL
               COURT PERMITTED THE PROSECUTOR AT THE
               TRIAL ON FALSE SWEARING TO QUESTION
               [DEFENDANT] ABOUT HIS PENDING DRUG
               CHARGES.

               II. [DEFENDANT'S] CONVICTIONS FOR FALSE
               SWEARING CANNOT STAND BECAUSE THE
               TRIAL COURT'S VERDICT OF GUILT WAS
               AGAINST THE WEIGHT OF THE EVIDENCE.

               III. THE TRIAL COURT ERRED IN ORDERING
               THE SENTENCES ON COUNTS ONE AND FOUR
               . . . TO RUN CONSECUTIVELY.

After considering defendant's arguments, we find the first two points lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We agree, however, in considering defendant's third point, that the judge

abused his discretion by imposing consecutive terms on two of the three false-

swearing convictions.

      We first add a few comments to our disposition of Point I, and then

explain why, after considering defendant's Point III, we reverse the judgment

insofar as it imposes consecutive terms on two of the three false-swearing

convictions.




                                                                     A-4144-16T1
                                     6
                                        I

      To put defendant's first argument in perspective, we start with the fact

that in managing the multiple charges against defendant, the judge acceded to

the prosecutor's request that the false-swearing charges be tried first. With the

CDS charges still looming, defendant took the stand to defend himself against

the false-swearing charges. That circumstance gave rise to defendant's Point I,

in which he claims the judge erred in allowing the prosecutor to elicit from

him information that tended to incriminate him in the CDS matter during the

following cross-examination:

            Q. So it's your testimony that that's where that sexual
            assault occurred, right there?

            A. When he – yeah, as soon as he touched me like
            that, it was a sexual assault.

            Q. Okay.

            A. I didn't give him consent to touch me like that.

            Q. Okay. All right. So it had nothing to do with the
            fact that you had a wad of crack cocaine in your
            pants?

Defendant objected for a number of reasons, all of which the judge overruled.

Of interest is defendant's objection that the question as framed had a

"tend[ency] to incriminate" him in the CDS matter. The judge overruled that


                                                                        A-4144-16T1
                                      7
objection, leading defendant to thereafter acknowledge the presence of CDS in

his possession during the search, as cross-examination continued:

            Q. All right, for the fourth time. It is your testimony
            that you moved away from [the police sergeant]
            because he was attempting to penetrate your anus with
            his finger, on the outside of your clothing, and not
            because you had a wad of suspected CDS in your
            pants back there?

            A. Correct.

            Q. Okay. So it had nothing to do with the suspected
            CDS. It was because he was trying to penetrate your
            . . . anus with his finger?

            A. Yes.

We agree that the judge mistakenly required a response from defendant to

these questions because it unnecessarily tended to call upon defendant to

incriminate himself in the pending CDS matter.

      The phrasing of these questions was unnecessary because whatever the

sergeant was trying to remove from defendant's pants was irrelevant to the

false-swearing charges. The uses of phrases like "wad of crack cocaine" or

"suspected CDS" in this questioning could have been replaced with a word like

"something" or "an object" and the relevant facts would have been permissibly

elicited without forcing defendant to acknowledge CDS possession – a fact

relevant only to the pending CDS charge.

                                                                      A-4144-16T1
                                     8
      Although the judge's ruling on the defense objection was mistaken, it

had no future bearing on the CDS matter, as defendant later pleaded guilty.

Harm would have befallen defendant from the scope of this questioning only if

defendant went to trial on the CDS matter and if the State then sought to use

the false-swearing testimony as proof of defendant's CDS possession. Since

those things never occurred, we conclude the error committed during the false-

swearing trial was harmless.

                                       II

      We recognize trial judges have wide discretion when sentencing a

defendant. State v. Dalziel, 182 N.J. 494, 500 (2005). When a judge follows

the applicable statutory guidelines, identifies and properly weighs all

applicable aggravating and mitigating factors, and finds the evidence in the

record sufficient and credible, then the sentencing decision will not be

disturbed, State v. Natale, 184 N.J. 458, 489 (2005), absent a determination

that the sentence was "clearly unreasonable," State v. Carey, 168 N.J. 413,

430-31 (2001), or "shock[ing] [to] the judicial conscience," State v. O'Donnell,

117 N.J. 210, 215-16 (1989). Our focus here is not on the particular prison

terms imposed on the false-swearing convictions but on the decision to impose

consecutive terms.


                                                                       A-4144-16T1
                                      9
      When a judge considers whether to impose consecutive or concurrent

sentences, the factors outlined in State v. Yarbough, 100 N.J. 627 (1985),

come into play. These factors acknowledge a policy that "there can be no free

crimes in a system for which the punishment shall fit the crime," id. at 643,

and, so, a judge must consider "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.

            [Id. at 643-44.3]

Because they are to "be applied qualitatively, not quantitatively," Carey, 168

N.J. at 427, a judge is empowered to impose consecutive sentences even when

3
   Yarbough includes other factors, but the first factor – "no free crimes" –
states the overall purpose for imposing a consecutive term, and the others –
with the exception of the subparts of the third factor quoted above – all express
procedural considerations unhelpful in determining whether to impose
consecutive or concurrent terms. Carey, 168 N.J. at 423.


                                                                        A-4144-16T1
                                     10
a majority of the factors favors concurrent terms, id. at 427-28. In making this

decision, a judge must decide if the factor given great weight "'renders the

collective group of offenses distinctly worse than the group of offenses would

be were that circumstance not present.'" Id. at 428 (citation omitted).

      The State contends that in filing the complaints against the officers,

defendant committed separate acts, at different times, against multiple victims .

Any truth in that assertion is at best an overestimation of what occurred. In

suggesting the groundwork for this conclusion, the judge emphasized

defendant's return two weeks after filing the original three complaints to file

another.   The judge reasoned these were distinct and independent events

because defendant took the time to contemplate the last filing.

      Although the judge's statement was accurate, defendant's return to lodge

a fourth complaint resulted from a desire to correct an earlier mistake. This

was borne out in the court administrator's testimony, which confirmed that

defendant sought to withdraw the erroneous complaint against the uninvolved

officer but wasn't permitted.    The only fair way of examining defendant's

overall conduct is to view it as a single act with multiple victims.

      To be sure, it has been held that multiple victims alone may support

consecutive terms. In Carey, the Court held that in vehicular homicide cases


                                                                          A-4144-16T1
                                      11
with multiple victims, a judge should "ordinarily" impose "at least two

consecutive terms." 168 N.J. at 429. See also State v. Molina, 168 N.J. 436,

442 (2001). But we view the circumstances here differently because, in Carey,

for example, two children lost their mother, two adults lost their college-aged

son, and two accident survivors experienced painful physical therapy and

multiple surgeries. 168 N.J. at 428-29. No one was orphaned here. No one

died. No one was physically injured. The police officers were inconvenienced

until the complaints were dismissed and expunged. So, the multiple-victims

factor by itself – and that's all there is here – was insufficient to warrant

consecutive terms for the false-swearing convictions, particularly when the

judge imposed the maximum prison term on one.

      We conclude that the imposition of consecutive terms was shocking to

the judicial conscience.

                                     ***

      To summarize, we agree with defendant's Point I that the judge erred in

requiring potentially incriminating testimony but find that error harmless. We

find no merit in defendant's Point II. As for Point III, we agree that the judge

erred in imposing consecutive terms on the false-swearing convictions and




                                                                       A-4144-16T1
                                     12
remand for entry of an amended judgment of conviction that conforms with

this opinion.

      Affirmed in part, reversed in part, and remanded for further proceedings.

We do not retain jurisdiction.




                                                                       A-4144-16T1
                                    13
