                                NOT FOR PUBLICATION WITHOUT THE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-0413-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

QUAMEER L. HENCE,

     Defendant-Appellant.
______________________________

                    Submitted November 7, 2018 – Decided December 18, 2018

                    Before Judges Suter and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 15-02-0451.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Elizabeth C. Jarit, Assistant Deputy Public
                    Defender, of counsel and on the briefs).

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Maura Murphy Sullivan,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a jury trial, defendant Quameer L. Hence was found guilty of:

first-degree robbery, N.J.S.A. 2C:15-1; third-degree criminal restraint, as a

lesser-included offense of kidnapping, N.J.S.A. 2C:13-1; and second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1). On August 5, 2016, the trial judge

granted the State's motion for an extended term of imprisonment resulting in

defendant being sentenced on the robbery charge to forty-five years in prison,

subject to the No Early Release Act (NERA), and five years on the criminal

restraint charge, consecutive to the robbery sentence, plus mandatory fines and

penalties. The court merged the second-degree aggravated assault charge with

the first-degree robbery charge.

      On appeal, defendant presents the following arguments:

            POINT I

            THE JURY INSTRUCTIONS WERE FATALLY
            FLAWED, DEPRIVING DEFENDANT OF DUE
            PROCESS AND A FAIR TRIAL, AS WELL AS THE
            RIGHT TO PRESENT A DEFENSE AND THE RIGHT
            TO A UNANIMOUS JURY VERDICT. (Partially
            raised below)

            A.    Failure to instruct the jury on accomplice liability
                  denied Mr. Hence due process, a fair trial, and the
                  right to present a complete defense where Mr.
                  Hence's defense was that he had a lesser mens rea
                  than that of his codefendant who acted as the
                  principal. (Not raised below)


                                                                         A-0413-16T4
                                        2
B.   The jury instructions and verdict sheet on first-
     degree robbery allowed for a non-unanimous
     verdict, depriving Mr. Hence of his right to a
     unanimous verdict and due process of law. (Not
     raised below)

C.   Failure to charge the requested lesser-included
     offense of theft denied Mr. Hence due process
     and a fair trial.

POINT II

THE RULES OF EVIDENCE AND THE
DEFENDANT'S DUE PROCESS RIGHTS WERE
VIOLATED BY THE ADMISSION OF HEARSAY
STATEMENTS THAT PEOPLE FROM THE
NEIGHBORHOOD    WERE     SAYING    THE
DEFENDANT WAS GUILTY OF THE CRIME. (Not
raised below)

POINT III

THE CUMULATIVE IMPACT OF THE ERRORS
DENIED HENCE DUE PROCESS AND A FAIR
TRIAL. (Not raised below)

POINT IV

RESENTENCING IS REQUIRED BECAUSE THE
COURT PENALIZED THE DEFENDANT FOR
EXERCISING HIS RIGHTS TO REMAIN SILENT
AND PROCEED TO TRIAL, IMPROPERLY
DOUBLE-COUNTED THE HARM TO THE VICTIM,
INCORRECTLY     IMPOSED   CONSECUTIVE
SENTENCES, AND IMPOSED A MANIFESTLY
EXCESSIVE SENTENCE.



                                                         A-0413-16T4
                         3
              A.    The trial court's consideration of Mr. Hence's
                    lack of remorse "up until today" penalized the
                    defendant for maintaining his innocence and
                    exercising his constitutional right to a trial.

              B.    Because the brutality of the assault was double-
                    counted throughout the imposition of sentence,
                    resentencing is required.

              C.    Because all of the Yarbough factors weigh in
                    favor of concurrent sentences, the court erred in
                    imposing consecutive sentences for the robbery
                    and criminal restraint convictions.

              D.    The fifty-year sentence is manifestly excessive.

        We reject these arguments and affirm defendant's conviction and

sentence.1

                                          I.

        The following facts are derived from the trial record. On September 15,

2014, fifty-four year old S.L., 2 who was homeless and using crack cocaine and

alcohol at the time, was walking and approached by defendant, who questioned

her about what she was doing. He followed her, punched her in the face in an

alley in Camden, removed her clothes, and sexually assaulted her. While held



1
  We granted defendant's motion to compel turnover of co-defendant Miguel
Nunez's Presentence Report on January 9, 2018.
2
    We use initials to protect the privacy of the victim.
                                                                        A-0413-16T4
                                          4
down, S.L. saw a Hispanic male on a phone standing nearby and thought he was

calling the police. Instead, he refused to assist her, and stood by watching the

assault. Defendant struck S.L. in the mouth and took out a knife. She kicked

him in the groin, jumped over a fence, and fled to Virtua Hospital's emergency

room. A look-out for a drug set, Elizabeth Holmes, saw an unidentified person

on the ground and a male figure dragging that person into a lot, and she assumed

that two men were fighting.

      Thirty minutes or so later, defendant walked up to the porch where Holmes

and others were situated, and stated he was fighting with a man over a

counterfeit fifty-dollar bill. Holmes, who has known defendant since childhood,

observed blood on his sneakers and t-shirt. After learning S.L. was injured that

evening, Holmes surmised that defendant was probably the culprit.         After

initially providing an alias, Holmes told Officer James that she observed a man

drag someone the night S.L. was assaulted but Holmes could not tell if it was

S.L. After obtaining a photograph of defendant at the police station, Detective

James showed it to Holmes, and she identified defendant as the man depicted in

the photograph. She clarified that she did not observe defendant dragging

anyone on the night of the crime.




                                                                        A-0413-16T4
                                       5
      Two days later, since S.L. was unconscious, a family member consented

to her undergoing a sexual assault examination by the Camden County Sexual

Assault Response Team. S.L.'s underwear and swabs from her external genitals,

vagina, anus, rectum, and fingernails were sent for testing. The Response Team

photographed S.L.'s swollen black eyes, "lacerations everywhere" on her face

and head, puncture wounds on her ears, and abrasions on her hip, coccyx, and

fingers. The Team thought the lacerations were caused by a "blunt object" or,

"knife or something sharp."

      S.L. was transferred to Cooper Hospital for seven days where she was

sedated and intubated for respiratory failure. She was diagnosed with traumatic

cerebral edema secondary to subdural hematoma, traumatic rupture of the left

globe, four bilateral ear lacerations, left rib fractures, a collapsed lung, a spleen

laceration, a nasal fracture, and loss of teeth. Her mental abilities were also

impaired, according to her sister's testimony. Two days following the assault,

S.L. told police that she was attacked and sexually assaulted by two black males,

and no weapon was involved. At that time, a nurse told a police officer that S.L.

was not sexually assaulted. Detective Wachter investigated the crime scene and

obtained surveillance footage from the area, but "nothing of substance" was

found.


                                                                             A-0413-16T4
                                         6
      On September 17, 2014, Jose Santiago appeared at the Camden County

Prosecutor's Office and claimed he had information about the assault after seeing

S.L. on a flyer that morning, issued by the Camden police, offering a $1000

reward. Although he was assured his statements were being made in confidence,

and he would not have to testify, Santiago claimed the police surreptitiously

recorded his conversation. He stated that he was walking in the area at the time

the assault occurred, when he encountered defendant and Miguel Nunez.

Defendant told Santiago that a man owed him money, he saw his girlfriend (S.L.)

and beat her, requiring her to seek treatment at Virtua Hospital. Defendant

ostensibly told Santiago he got blood on his sneakers and "knock[ed] her out."

Santiago told investigators that defendant and Nunez dragged S.L. into an

alleyway.   Notably, five days before making his statement, Santiago was

arrested for resisting arrest, but the charge was dismissed.

      Seven months later in April 2015, Santiago returned to the Camden

County Prosecutor's Office to recant his prior statement because his name

appeared in court documents, upsetting him. At trial, Santiago testified that he

lied on September 17 to detectives, and defendant never spoke to him about the

incident. He also testified that he falsely accused defendant because Santiago

was angry at Nunez and his mother for causing him to be arrested on three


                                                                         A-0413-16T4
                                        7
separate occasions. Santiago relayed to detectives initially "what people in the

neighborhood were saying." His redacted statement was played for the jury

following a hearing pursuant to State v. Gross, 121 N.J. 1 (1990).

       A search warrant executed on September 18, 2014 at defendant's home

resulted in the seizure of a pair of his sneakers and boxer shorts. S.L. was

determined to be the source of the DNA profile from defendant's right sneaker.

That same day, a search warrant was also executed at Nunez's home. One of his

sneakers found in the search tested positive in a presumptive blood test. A bag

filled with a suspected Controlled Dangerous Substance (CDS) was also

uncovered. Later that day, defendant was interviewed at the Camden County

Metro Police Department and waived his Miranda3 rights.              Initially, he

contended that Nunez assaulted S.L. because she tried to buy drugs from him

with a counterfeit bill. Defendant claimed he knew S.L., and described her as a

"scared type." He went so far to say that he wanted to help her, but he was

restrained from doing so by Abdullah, a friend of S.L. In fact, defendant told

the officers he saw Nunez strike S.L. with a brick to her head, and witnessed

blood gushing from her eyes.




3
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-0413-16T4
                                       8
      Ultimately, defendant admitted "touching her a little bit" meaning that he

kicked S.L. in her side, arm, and back after he claimed Nunez dragged her into

the alley and pulled her pants down. Defendant also admitted to "moving her a

little bit" as he tried to assist Nunez in getting his money back from S.L. and

queried her, "[w]here's the money at?" Defendant claimed the altercation lasted

forty-five minutes to one hour, and he denied sexually assaulting her. According

to defendant, Nunez sold fake drugs to S.L. and in return, she gave him a phony

fifty-dollar bill that Nunez confronted her about. After Nunez hit S.L. with a

brick, defendant responded, "get off of the lady, what are you doing, over a

couple of dollars, for real? . . . Mike stop, stop, stop." In his statement to police,

defendant alleged that Nunez continued to strike S.L., defendant tried to stop

him, but Abdullah restrained defendant, assuming he was going to take part in

the assault. Defendant further contended that he and Abdullah fought, defendant

was slammed to the ground, and sustained abrasions to his elbow, knee, and a

"blood blister type abrasion" to his palm.




                                                                              A-0413-16T4
                                          9
      Defendant's YSTR DNA profile4 matched the YSTR DNA profile 5 taken

from S.L.'s genitals and underwear, and his minor DNA profile matched her

fingernail sample. Nunez was excluded as a DNA source.

      After his arrest, a grand jury indicted defendant, charging him with first -

degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery,

N.J.S.A. 2C:5-1 and 15-1; first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) or

(2); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), (5) or (6);

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree

possession of a weapon, a brick, for an unlawful purpose, N.J.S.A. 2C:39 -4(d);

and fourth-degree possession of a weapon, a brick, N.J.S.A. 2C:39-5(d).

      At trial, S.L.'s testimony was equivocal according to defendant.6 She

initially denied the assault, but later testified that she was injured in "a car


4
  Brett Hutchinson, a forensic scientist employed by the New Jersey State Parole
Office of Forensic Sciences, testified that a DNA profile is based upon statistics
provided by an FBI database.
5
  A DNA profile is compared to the general population and analyzed to ascertain
the frequency of occurrence in the general population. Hutchinson testified that
a YSTR focuses on the Y chromosome that only appears in males who have an
XY chromosome profile, since females have an XX chromosome profile.
Therefore, if you are looking for a male DNA profile, the focus is on the Y
chromosome, passed down from father to son.
6
  S.L. had charges pending against her for possession of drug paraphernalia,
assault on a police officer, and resisting arrest.
                                                                          A-0413-16T4
                                       10
accident or something, or beaten up by somebody" and "was raped." She

recalled being attacked by a 5'7" tall black male with "real dark skin," in his

early twenties, who "took [her] around the corner," punched her in the face, and

sexually assaulted her. In contrast to her statement to the police, she testified at

trial that the attacker had a knife. She also testified that a Hispanic man was

present but did not offer her any assistance. She also claimed that a third,

unidentified individual was also present. Defendant was tried alone and did not

testify.

                                         II.

       Defendant's contentions in Points I, I(A), I(B), II, and III are raised for the

first time on appeal and are therefore subject to review for plain error, that is,

error "clearly capable of producing an unjust result." R. 2:10-2; see also State

v. Munafo, 222 N.J. 480, 488 (2015). A conviction will be reversed under this

standard only if the error is "sufficient to raise a reasonable doubt as to whether

[it] led the jury to a result it otherwise might not have reached[.]" State v.

Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336

(1971)).

       We first turn to defendant's contention in Point I and I(A) that the trial

court's charge was flawed in failing to instruct the jury on accomplice liability.


                                                                              A-0413-16T4
                                         11
He asserts that this deficiency deprived him of a fair trial because his defense

relied on the theory that he could not be held liable for co-defendant Nunez's

conduct without possessing the requisite mens rea.           Defendant argued th at

although he was a participant in the incident, Nunez was the one who "seriously"

assaulted S.L., and defendant did not possess a weapon, citing State v.

Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (holding the judge's

instructions must "carefully impart to the jury the distinctions between the

specific intent required for the grades of the offense.").

      In assessing the propriety of the jury charge, we examine the entire charge

to see whether it was ambiguous or misleading or whether it misinfo rmed the

jury of the law. State v. R.B., 183 N.J. 308, 324 (2005). Generally, except for

plain error under Rule 1:7-2, a defendant waives the right to contest an

instruction on appeal "if he does not object to the instruction." State v. Torres,

183 N.J. 554, 564 (2005). When a jury instruction follows the model jury

charge, although not determinative, "it is a persuasive argument in favor of the

charge as delivered." State v. Angoy, 329 N.J. Super. 79, 84 (App. Div. 2000).

However, because of their importance in the trial proceeding, "erroneous

instructions on material issues are presumed to be reversible error . . . ." State




                                                                            A-0413-16T4
                                       12
v. Lopez, 187 N.J. 91, 101 (2006) (quoting State v. Marshall, 173 N.J. 343, 359

(2002)).

      The accomplice liability statute states in pertinent part:

            a. A person is guilty of an offense if it is committed
            . . . by the conduct of another person for which he is
            legally accountable . . . .

            b. A person is legally accountable for the conduct of
            another person when:

                  ....

            (3) He is an accomplice of such other person in the
            commission of an offense;

                  ....

            c. A person is an accomplice of another person in the
            commission of an offense if:

            (1) With the purpose of promoting or facilitating the
            commission of the offense; he

            (a) Solicits such other person to commit it;

            (b) Aids or agrees or attempts to aid such other person
            in planning or committing it; or

            (c) Having a legal duty to prevent the commission of
            the offense, fails to make proper effort so to do; or

            (2) His conduct is expressly declared by law to
            establish his complicity.

            [N.J.S.A. 2C:2-6.]

                                                                       A-0413-16T4
                                       13
      "When a defendant might be convicted as an accomplice, the trial court

must give clear, understandable jury instructions regarding accomplice

liability." State v. Walton, 368 N.J. Super. 298, 306 (App. Div. 2004). Here,

defendant asserts that his defense was based upon a vicarious liability theory

because he did not intend for S.L. to be seriously injured, and Nunez was the

one who brutally attacked her. For the first time on appeal, defendant contends

that State v. Cook, 300 N.J Super. 476, 479 (App. Div. 1996), is controlling

because Cook was tried for murder separately from the co-defendant.              In

contradistinction to this case, an accomplice liability charge was given to the

jury, but we reversed the trial court because: "The jury should likewise have

been advised in unequivocal terms that, depending on its view of the evidence,

it could decide that the liability of Cook was different from that of [the co-

defendant] because each had a different state of mind." Id. at 487-88. The State

contends that the accomplice charge is not applicable here because neither the

indictment nor the State alleged defendant was responsible for the conduct of

another, i.e. Nunez. Further, S.L. testified that there was only one attacker, and

that the Hispanic male witnessed the crime, but did not touch her. Holmes

corroborated S.L.'s testimony by recounting that she saw one person laying on

the ground and one male figure dragging that person.


                                                                          A-0413-16T4
                                       14
      The only evidence presented at trial to support defendant's theory that

Nunez solely attacked S.L. was defendant's statement to the police. Unlike the

facts in Bielkiewicz, where the trial court failed to charge the jury that it could

find one defendant guilty of murder as a principal and the other defendant guilty

of aggravated manslaughter, manslaughter, or assault as an accomplice, here,

defendant and Nunez were charged with the same offenses and the same degrees

of culpability. Bielkiewicz, 267 N.J. at 531. Thus, defendant's reliance upon

Cook and Bielkiewicz are factually distinguishable, and we are not persuaded

by his arguments.

      To establish guilt of first-degree robbery, the State was required to prove

defendant intended to commit theft, and "the theft must [have] proceed[ed] or

[been] coterminous with the use of force." The jury was further instructed that

if it found defendant "formed the intent to commit the theft after he used force,

then he could not be guilty of robbery."

      For the first time on appeal, defendant also argues that the jury

instructions and verdict sheet were ambiguous, generating uncertainty as to

whether the jury based its conviction on committing serious bodily injury or for

possessing a deadly weapon.       A unanimity instruction requires unanimous

agreement as to each element of the offense. State v. Gentry, 183 N.J. 30, 33


                                                                           A-0413-16T4
                                       15
(2005). Ordinarily, a general jury instruction requiring unanimity suffices in

directing the jury that it must unanimously agree on the specific predicate of a

guilty verdict. State v. Cagno, 211 N.J. 488, 516-17 (2012).

      The judge instructed the jury by reading from the indictment first, stating

defendant was charged with "committing a theft upon [S.L.]" during which he

"purposefully inflicted or attempted to inflict serious bodily injury and/or was

armed with, used or threatened the immediate use of a deadly weapon . . . ."

Despite the use of the phrase "and/or," the charge required the jury to

unanimously determine whether defendant purposely attempted to inflict serious

bodily harm upon S.L., which is a component of first-degree robbery and

second-degree aggravated assault but not the weapons offenses. Both coalesced

into a unanimous jury verdict. There was no danger of a fragmented verdict

here, and therefore, a specific unanimity charge was not required. See, e.g.,

State v. Ghandi, 201 N.J. 161, 192 (2010). Thus, regardless of the "and/or"

phrase in the charge, the jury here found defendant guilty of robbery, and we

find no error.

                                      III.

      We next consider defendant's argument in Point I(C) that the trial judge

erred by failing to instruct the jury on the elements of theft, N.J.S.A. 2C:20-3,


                                                                         A-0413-16T4
                                      16
as a lesser-included offense of robbery, N.J.S.A. 2C:15-1. Defendant contends

the charge was required because arguably, the theft here occurred after the

assault, and the jury could have found defendant did not intend to commit a theft

until after the assault occurred. In denying defendant's request, the judge ruled

that it was inappropriate to charge theft as a lesser-included offense because

defendant admitted to kicking S.L., and finding "there's simply no rational jury

that could find on the lesser included charge."

      Applying the plain error standard, we must first determine if the court

erred by failing to give the instruction and, if it did, whether the failure "was

clearly capable of producing an unjust result such that a reasonable doubt is

raised as to whether the error led the jury to a result it otherwise might not have

reached." State v. Jenkins, 178 N.J. 347, 361 (2004) (quoting State v. Brims,

168 N.J. 297, 306 (2001)). To determine whether a lesser-included offense

charge is appropriate, a court must find the offense "satisf[ies] the definition of

an included offense set forth in N.J.S.A. 2C:1-8(d) and . . . that there be a rational

basis in the evidence to support a charge on [the] included offense." State v.

Maloney, 216 N.J. 91, 107 (2013) (quoting State v. Thomas, 187 N.J. 119, 131

(2006)). For the reasons that follow, we are convinced that the trial judge




                                                                              A-0413-16T4
                                        17
correctly determined that there was no rational basis to instruct the jury on theft.

Following argument from counsel, the trial court stated:

             Here I find the facts of this case more compelling than
             those in Cassady[7] with respect to, not only did we have
             a threat of force here, but looking at the victim and the
             injuries sustained, defendant's acknowledgement that at
             least that he kicked the victim and helped search for the
             money, that there's simply no rational jury that could
             find on the lesser included charge. Based upon the
             direction of the Cassady case, I'm going to deny the
             request to charge theft.

      We are satisfied that there was a rational basis for not charging theft, and

no error was committed by the trial judge. "The mere possibility of an unjust

result is not enough. To warrant reversal . . . an error [in the charge] 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. Funderburg, 225 N.J. 66,

79 (2016) (citation omitted) (quoting Jenkins, 178 N.J. at 361).

                                        IV.

      In addressing Point II of defendant's brief, for the first time on appeal he

contends that Santiago's trial testimony that other people in the neighborhood


7
   State v. Cassady, 198 N.J. 165, 169 (2009). The Supreme Court held that the
trial court properly denied defendant's request for a jury instruction on the
lesser-included offense of theft where defendant threatened a bank teller by
demanding money and vaulted a seven-foot partition into the teller's area when
she refused to produce same.
                                                                             A-0413-16T4
                                        18
implicated defendant in the crime constituted inadmissible hearsay.          We

disagree that error was committed on this issue. The purpose of the subject

testimony was relevant as to the issue of Santiago's credibility, since it

contradicted his conflicting statements to police. We disagree with defendant's

assertion that his due process rights were violated and the Rules of Evidence

were disregarded because the testimony was not offered for the purported truth

of the matter asserted. Further, Santiago's testimony was not objected to, and

served a non-hearsay purpose, i.e. the implied assertion that defendant may have

been involved in the subject crimes. There was no prejudicial or plain error in

admitting Santiago's testimony.

                                       V.

      Next, defendant argues in Point IV that he was penalized for exercising

his right to remain silent, that there was double counting relative to the harm

inflicted upon the victim, and that his sentence was manifestly excessive.

Defendant makes no showing that his silence had an inflammatory effect on the

judge or jury, and we find no error.

      As to the double-counting argument, we note that, generally, a trial court

may not "double-count" aggravating factors in sentencing. In other words, if

the court applies certain aggravating factors in setting an extended -term


                                                                        A-0413-16T4
                                       19
sentence, it may not later also consider those factors in balancing the aggravating

and mitigating factors. State v. Vasquez, 374 N.J. Super. 252, 267-68 (App.

Div. 2005).    However, the judge did not impermissibly double-count the

aggravating factors. Defendant had prior convictions in excess of those required

to sentence him to an extended term which the judge considered.             Unlike

Vasquez, the judge here did not utilize defendant's prior convictions in

evaluating the aggravating and mitigating factors under N.J.S.A. 2C:44-1.

Indeed, the judge stated that: "The force used on the victim in this case was

extremely brutal and depraved . . . [e]vidence presented at trial, including before

and after photographs of [S.L.] reflected that her face was unrecognizable

following this assault."

      After considering letters from defendant's significant other, family, and

church members, the judge found that his character was inconsistent with the

accolades attributable to him in those letters, and "rather is indicative of conduct

of a violent predator." In recounting the evidence presented, the judge further

reasoned that defendant "today for the first time expressed remorse for what

occurred," that he "has no respect for the value of human life[,]" and that "his

only remorse is that he was caught for this vicious assault."




                                                                            A-0413-16T4
                                        20
      We review a "trial court's 'sentencing determination under a deferential

[abuse of discretion] standard of review.'" State v. Grate, 220 N.J. 317, 337

(2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)); see also State v.

Pierce, 188 N.J. 155, 169-70 (2006) ("On appellate review, the court will apply

an abuse of discretion standard to the sentencing court's explanation for its

sentencing decision within the entire range."). We affirm a sentence if: (1) the

trial court followed the sentencing guidelines; (2) its findings of fact and

application of aggravating and mitigating factors were based on competent,

credible evidence in the record; and (3) the application of the law to the facts

does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228

(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When reviewing a

trial court's sentencing decision, we will not "substitute [our] judgment for that

of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014).

      Here, the judge cited defendant's remorse within the context of the

evidence, jury's findings, the letters, and his criminal history that includes "four

Superior Court convictions," and two "Municipal Court convictions." The judge

also specifically mentioned that although he found aggravating factor two

applied, "in order to prevent any risk of double counting any factor which may




                                                                            A-0413-16T4
                                        21
be considered in this conviction, I am not placing any significant weight on this

factor." Thus, we are satisfied that there was no double-counting.

                                       VI.

       Defendant asserts in Point IV(C) that the judge abused his discretion in

imposing consecutive sentences because the crimes were not independent of

each other, and involved "a single period of aberrant behavior" with "a single

victim." He maintains that the judge failed to conduct a proper analysis of the

Yarbough8 factors by concluding that "because the conduct resulting in the

conviction for robbery of [S.L.] is a separate and distinct crime from the criminal

restraint conviction[,]" that the restraint was a "separate and distinct act," and

"there should be no free crimes." We disagree.

       While there are no statutorily set rules for imposing consecutive

sentences, the Court in Yarbough, provided the following guidelines:

             (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:

8
    State v. Yarbough, 100 N.J. 627 (1985).
                                                                           A-0413-16T4
                                       22
            (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.

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

      A    sentencing    court   applies    these   factors   "qualitatively,      not

quantitatively." State v. Carey, 168 N.J. 413, 427 (2001). Thus, a court may

impose consecutive sentences "even though a majority of the Yarbough factors

support concurrent sentences." Id. at 427-28; see, e.g., State v. Molina, 168 N.J.

436 (2001) (finding consecutive sentences were warranted despite the presence

of only one Yarbough factor); see also State v. Swint, 328 N.J. Super. 236, 264

(App. Div. 2000) (holding concurrent sentences were not mandated even where

the crimes were connected by a "unity of specific purpose . . . and were

somewhat interdependent of one another, and were committed within a short

period of time of one another . . . .") (internal quotation marks omitted).

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                                      VII.

      We next address whether the fifty-year sentence imposed is manifestly

excessive. At sentencing, the trial judge found that defendant 9 was eligible for

an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a). The judge

relied upon defendant's extensive criminal history dating back to 2010 that

included two convictions for drug-related crimes, including distribution on or

near a school zone in violation of N.J.S.A. 2C:35-7, and a violation of probation.

The trial judge weighed the prior convictions as support for the extended term.

We review the trial court's sentencing decisions under an abuse of discretion

standard. Pierce, 188 N.J. at 166 (citing Roth, 95 N.J. at 364-66). "Appellate

review of a sentence is restricted to whether the determination of the sentencing

factors was appropriate, whether the determination was supported by competent

evidence in the record, and whether the sentence is so unreasonable that it shocks

the judicial conscience." State v. Paduani, 307 N.J. Super. 134, 148 (App. Div.

1998). When reviewing a sentence, we must ensure that the trial court followed


9
  Defendant was twenty-five years old at sentencing. The judge did not consider
defendant's two prior convictions in evaluating the aggravating and mitigating
factors under N.J.S.A. 2C:44-1. Noting that the force used on S.L. was
"extremely brutal and depraved," and "the beating extended over a period of, at
a minimum forty-five minutes . . ." it was appropriate for the judge to consider
defendant's criminal record as a whole when determining the length of the
sentence.
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                                       24
the sentencing guidelines promulgated in the criminal code. Roth, 95 N.J. at

366. Specifically, we must (1) "require that an exercise of discretion be based

upon findings of fact that are grounded in competent, reasonably credible

evidence"; (2) "require that the factfinder apply correct legal principles in

exercising its discretion"; and (3) modify sentences only when the facts and law

show such a "clear error of judgment that [the sentence] shocks the judicial

conscience." Id. at 363, 364.

      A reviewing court must also make sure that sentencing guidelines were

followed, determine that findings on aggravating and mitigating factors are

based on the evidence, and decide whether application of the guidelines makes

a particular sentence clearly unreasonable. Id. at 364-66.

      A court may sentence a defendant to an extended term of imprisonment,

upon application of the prosecutor, if:

            The defendant has been convicted of a crime of the first,
            second or third degree and is a persistent offender. A
            persistent offender is a person who at the time of the
            commission of the crime is [twenty-one] years of age
            or over, who has been previously convicted of at least
            two separate occasions of two crimes, committed at
            different times, when he was at least [eighteen] years of
            age, if the latest in time of these crimes or the date of
            the defendant's last release from confinement,
            whichever is later is within [ten] years of the date of the
            crime for which the defendant is being sentenced.


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                                          25
            [N.J.S.A. 2C:44-3(a).]

      The trial court must consider a four-part test when determining whether

to give a defendant an extended sentence. State v. Dunbar, 108 N.J. 80, 89

(1987):

            First, the sentencing court must determine whether the
            minimum statutory predicates for subjecting the
            defendant to an extended term have been met. Second,
            the court must determine whether to impose an
            extended sentence.       Third, it must weigh the
            aggravating and mitigating circumstances to determine
            the base term of the extended sentence. Finally, it must
            determine whether to impose a period of parole
            ineligibility.

            [Ibid.; Pierce, 188 N.J. at 168-72.]

      The court did not violate the sentencing guidelines, fail to base its finding

of aggravating and mitigating factors on competent and credible evidence , or

impose sentences that shock our conscience.        See Fuentes, 217 N.J. at 70;

Bolvito, 217 N.J. at 228.

      Having thoroughly reviewed the record, we are convinced that Point III

and the remainder of defendant's arguments lack sufficient merit to warrant

discussion in this opinion. R. 2:11-3(e)(2).

      Affirmed.




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