                        NOT FOR PUBLICATION WITHOUT THE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-5132-14T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LARRY AUSTIN,

        Defendant-Appellant.


              Submitted April 27, 2017 - Decided           May 25, 2017

              Before Judges Hoffman and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              11-03-0410.

              Joseph E. Krakora, Public Defendant, attorney
              for appellant (Stephen W. Kirsch, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Erin M. Campbell,
              Assistant Prosecutor, on the brief).

PER CURIAM
     Defendant Larry Austin appeals from a March 21, 2013 order

denying his motion to suppress evidence.     Defendant entered a

negotiated agreement pleading guilty to the first-degree crimes

of aggravated manslaughter, N.J.S.A. 2C:11-4(a), and two counts

of armed robbery, N.J.S.A. 2C:15-1, for which he was sentenced to

a forty-four year term of incarceration, subject to the 85% parole

ineligibility period required by the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. Defendant additionally challenges the imposed

sentence as excessive.    Because we find the warrantless search

yielding the evidence defendant sought to suppress was undertaken

by consent, and because the imposition of consecutive sentences

for defendant's convictions were properly supported by the trial

judge's findings, we affirm.

     These facts are taken from the suppression hearing. Defendant

sought to suppress the evidence police obtained from a residence

he shared with his mother and brother by way of a warrantless

search.    The trial judge denied defendant's motion in a written

opinion, and on September 9, 2014, defendant subsequently pled

guilty to aggravated manslaughter and two counts of first-degree

robbery.    As a part of his plea, defendant admitted that on

September 4, 2010, he robbed three victims in Jersey City at

gunpoint, inflicting bodily injury on two victims, and fatally

shooting the third victim in the back of the neck.   On October 23,

                                2                           A-5132-14T4
2014, the trial judge sentenced defendant to a total of forty-four

years with 85% parole ineligibility - twenty-four years for the

aggravated manslaughter, and two ten-year terms - one for each

robbery, all three sentences to run consecutively to one another.

     On appeal, defendant contends:

          POINT I

          DEFENDANT'S MOTION TO SUPPRESS THE ITEMS
          SEIZED SHOULD HAVE BEEN GRANTED; POLICE WERE
          OBLIGATED TO ASK HIM WHETHER HE CONSENTED TO
          THE SEARCH OF THE APARTMENT WHERE HE LIVED
          WHEN HE WAS THE SUSPECT IN THE CASE AND, AT
          THE TIME, PRESENT AT THE SCENE, RATHER THAN
          ASKING ANOTHER OCCUPANT OF THE HOME FOR
          CONSENT INSTEAD, THEREBY PURPOSELY BYPASSING
          DEFENDANT.

          POINT II

          THE SENTENCE IMPOSED APPEARS TO BE BEYOND THE
          UPPER LIMIT OF THE TERMS OF THE PLEA BARGAIN;
          IT IS ALSO MANIFESTLY EXCESSIVE, THEREBY
          REQUIRING A REMAND FOR RESENTENCING.

     We examine each of these arguments.   This court "reviewing a

motion to suppress must uphold the factual findings underlying the

trial court's decision so long as those findings are supported by

sufficient credible evidence in the record."   State v. Elders, 192

N.J. 224, 243 (2007)(internal citations omitted).   See also State

v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990)(holding that

the standard in reviewing a motion to suppress is whether the




                                3                           A-5132-14T4
"findings made by the judge could reasonably have been reached on

sufficient credible evidence present in the record.")

     The   United    States   Constitution     and   the    New    Jersey

Constitution both guarantee the right of persons to be free from

unreasonable searches and seizure in their home.            U.S. Const.

amend. IV; N.J. Const. art. I, ¶7.           Warrantless searches are

presumptively invalid unless, among other exceptions, voluntary

consent to the search, without coercion or duress, is provided.

Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S. Ct. 2041,

2059, 36 L. Ed. 2d 854, 875 (1973); State v. Domicz, 188 N.J. 285,

308 (2006).   Our Supreme Court has held that in order for a search

"[t]o be voluntary, the consent must be 'unequivocal and specific'

and 'freely and intelligently given.'"        State v. King, 44 N.J.

346, 352 (1965) (quoting Judd v. United States, 89 U.S. App. D.C.

64, 66, 190 F. 2d 649, 651 (D.C. Cir. 1951)).              Further, when

consent to search is sought, our law holds that the individual

from whom consent is sought must have "knowledge of the right to

refuse consent."    State v. Johnson, 68 N.J. 349, 354 (1975).

     Consent may be provided by a third party with lawful authority

over the premises or objects to be searched.         United States v.

Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242,

249 (1974). That third party may be a co-occupant of the premises.

Id. at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 250.     A co-occupant's

                                  4                               A-5132-14T4
consent will be deemed invalid if the other occupant/target of the

search is present and objects to the search.               Georgia v. Randolph,

547 U.S. 103, 110, 122-23 S. Ct. 1515, 1528, 164 L. Ed. 2d 208,

227 (2006).    However, where both co-occupants are present, our law

does not require that police poll each one for consent.                     Id. at

122, 126 S. Ct. at 1527, 164 L. Ed. 2d at 227.                    In Randolph, the

United States Supreme Court held that requiring the police "to

find   a   potentially    objecting       co-tenant      before    acting   on   the

permission they had already received . . . [would devolve] into a

test about the adequacy of the police's efforts to consult with a

potential objector."       Ibid.

       Recently, in State v. Lamb, 218 N.J. 300 (2014), our Supreme

Court upheld a warrantless search by consent where the stepfather

of a defendant refused a request to search.               The defendant and his

stepfather then left the residence.              Id. at 305.      Police were then

contacted by the defendant's girlfriend who provided the police

with   information,      giving    them       probable   cause     to   arrest   the

defendant while he was away from the residence. Ibid.                   Police then

obtained consent from defendant's mother who remained at the

residence.     Ibid.     The Lamb Court found the probable cause to

arrest defendant and the stepfather's exit from the residence were

not "designed to prevent either occupant from objecting to the

warrantless search."       Id. at 320.

                                          5                                 A-5132-14T4
       Here, the trial judge conducted a three-day hearing and

considered the testimony of six witnesses, including the arresting

officers and witnesses presented by defendant.                  Police obtained a

warrant   for    defendant's     arrest      on    September     4,   2010.       That

afternoon,      police     arrested    and        Mirandized    defendant       at    a

convenience store nearby his residence.               He was transported to his

residence in a police vehicle.              Once there, police informed his

mother    defendant      had   been   arrested      and   was   in    the   vehicle.

Defendant's mother went to the vehicle and was able to speak to

him.     Thereafter, police accompanied defendant's mother to the

residence and sought consent to search it.                     Defendant's mother

confirmed she was a legal resident of the apartment, which she

shared with defendant and his brother, and was advised of her

right to refuse or terminate the search.                  She verbally consented

and executed a consent form before the search commenced.

       We have found where there is a mutual residence, a third-

party's consent to search is colored by whether the third-party

"possessed common authority over or other sufficient relationship

to the premises or effects sought to be inspected."                         State v.

Miller, 159 N.J. Super. 552, 557 (App. Div. 1978) (quoting Matlock

supra, 415 U.S. at 169-72, 94 S. Ct. at 993, 39 L. Ed. 2d at 250).

The authority of the third-party:



                                        6                                     A-5132-14T4
          [R]elies not upon the law of property, [b]ut
          rests rather on mutual use of the property by
          persons generally having joint access or
          control for most purposes, so that it is
          reasonable to recognize that any of the co-
          habitants has the right to permit the
          inspection in his own right and that others
          have assumed the risk that one of their number
          might permit the common area to be searched.

          [Id. at 557-58 (quoting Matlock, supra, 415
          U.S. at 169-72, 94 S. Ct. at 992-93, 39 L. Ed.
          2d at 248-50).]

     Here, the trial judge found police seized defendant's jeans,

bearing brown stains believed to be blood spatter, from a chair

in the common kitchen area.     It was reasonable for the trial judge

to conclude defendant's mother had authority to access the kitchen.

Similarly, the trial judge was correct to conclude defendant

assumed the risk his jeans would be discovered when he left them

in the common area of the kitchen.       It was also reasonable for the

trial court to conclude defendant's mother possessed authority to

consent to search his bedroom, which he shared with his brother,

because she was on the lease and because she entered to wake

defendant's   brother   after   police   entered   the   apartment.     In

defendant's bedroom, police seized other evidence including three

shotgun shells, three cell phones, an mp3 player, three spiral

notebooks, thirty-six dollars, and a Probation notice. No evidence

exists of either he or his brother restricting their mother's

right to entry before she provided the police with both verbal and

                                   7                             A-5132-14T4
written authorization to search the entire apartment.                Because the

consent provided by defendant's mother was valid as to the entire

residence, we decline to invalidate the search on account of

defendant's brother's after-the-fact refusal to sign the consent

to search form.       In other words, the fact the brother did not sign

the consent to search does not disrupt or affect the search of his

bedroom already underway and authorized by his mother's consent.

The   factual    findings     of   the   trial     judge   are   supported      by

substantial, credible evidence in the record.

      We discern no basis to disturb the trial judge's findings the

consent here was unequivocal, voluntary, and knowing.                No evidence

of either coercion or duress exists in the record before us.                    No

evidence exists of police inappropriately detaining defendant for

the purpose of obtaining consent from his mother.                    Defendant's

detainer was pursuant to a valid arrest warrant.                 Moreover, the

police did not search his residence until consent was validly

obtained.       For   these   reasons,       the   trial   judge's    denial    of

defendant's motion to suppress is affirmed.

      Defendant next challenges as excessive and beyond the upper

limits of his plea the length of his aggregate sentence of forty-

four years with 85% parole ineligibility.             He also challenges the

imposition of consecutive rather than concurrent sentences.



                                         8                               A-5132-14T4
     We review a sentence to discern whether the trial court's

findings were "based upon findings of fact that are grounded in

competent, reasonably credible evidence[;]" whether the trial

court applied the "correct legal principles in exercising its

discretion[;]" and whether the sentence should be modified due to

"such a clear error of judgment that it shocks the judicial

conscience."   State v. Roth, 95 N.J. 334, 363-64 (1984).          If we

are convinced the trial court's sentence does not violate the

sentencing guidelines, the court made adequate findings of the

aggravating and mitigating factors based on the evidence, and its

determination is not clearly unreasonable, we will affirm the

sentencing determination.       See Id. at 364-65.

     Where a defendant challenges the imposition of a consecutive

sentence, we must determine whether the trial court properly

considered the following factors:

          (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;



                                    9                            A-5132-14T4
         (e) the convictions for which the sentences
         are to be imposed are numerous.

         [State v. Yarbough, 100 N.J. 627, 644 (1985), cert.
         denied, 475 U.S. 1014, 106 S. Ct. 1193 89 L.Ed. 2d
         308.

    In urging reversal of his sentence, defendant argues that he

did not receive the benefit of his bargain by agreeing to a plea

in exchange for a lesser sentence.    Defendant acknowledges his

plea was "open," but suggests his expectation was the term of

incarceration would not exceed thirty-three years.

    At defendant's September 9, 2014 plea hearing, the State

clearly expressed its intention to seek a sentence up to seventy

years:

         [The   Prosecutor]:   It   is   the   state's
         understanding that the defendant will plead
         guilty on indictment 0410-03 of the 2011 term
         on Count One as amended to charge aggravated
         manslaughter.   In exchange for that guilty
         plea, the State will be free to [seek] up to
         thirty years in New Jersey State Prison with
         eighty-five percent parole ineligibility.

         The defendant will plead guilty to count four
         of the indictment charging armed robbery in
         the first degree. In exchange for that guilty
         plea, the State will be free to [seek] up to
         twenty years in New Jersey state prison with
         eighty-five percent parole ineligibility.

         The defendant will plead guilty to count five
         of the indictment charging armed robbery in
         the first degree. The State will be free to
         [seek] up to twenty years [in] New Jersey
         state prison with eighty-five percent parole
         ineligibility.

                              10                          A-5132-14T4
            The State will be asking that those sentences
            run consecutively to one another.

       Likewise, the pre-sentence report sets forth an aggregate

term of seventy years sought by the State. The plea form initialed

and signed by defendant clearly sets forth the seventy years sought

by the State.    The plea agreement recites the thirty-three years,

which defendant asserts should have been the maximum; however, the

context, as stated on the plea form, notes this represents the 85%

parole    ineligibility     period   as   applied   to   a    forty-four      year

sentence.

       Defendant also argues the imposition of three consecutive

terms was excessive given his lack of an adult criminal record.

While    defendant    acknowledges    that   some    form      of     consecutive

sentence was appropriate, he urges that the robberies should have

been     considered   one   crime    whose   sentence        should    have    run

consecutive to the homicide as opposed to two separate robbery

sentences running consecutive to each other and to the homicide.

       Our role in reviewing a sentence is not to discern whether a

different sentence should have been imposed, but whether "there

is a 'clear showing of abuse of discretion.'"                State v. Bolvito,

217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503,

512 (1979)).    As our Supreme Court stated in Yarbough, "there can



                                     11                                   A-5132-14T4
be no free crimes in a system for which the punishment shall fit

the crime."    Yarbough, supra, 100 N.J. at 643.

      The   trial   judge's   sentence      is   sound.        As    noted    in   the

transcript    of     the   sentencing       proceeding,    the        trial     judge

considered    the    presentence   report,       the   arguments       of    counsel,

statements on behalf of defendant himself and family members, the

deceased victim's mother, and one of the victims.                   The trial court

considered defendant's juvenile record, which it found contained

similar crimes of theft.        The trial judge found two aggravating

factors and no mitigating factors favoring defendant.                       We see no

basis to disturb these findings; they are based on the credible

evidence in the record.

      Next, the judge reviewed the applicable Yarbough guidelines

and   concluded     that   defendant   committed       three    separate       crimes

against three separate victims.             Although the crimes were close

in time, the trial judge rejected the suggestion defendant's

conduct constituted a single period of aberrant behavior.                            He

found the crimes involved separate acts or threats of violence and

the victims were "separately targeted," two beaten and one shot,

suggesting distinct objectives.             The judge recited the specific

circumstances affecting each victim and stated: "There couldn't

be a better example of any one incident being very separate and

distinct acts of violence."

                                       12                                     A-5132-14T4
      Not all six Yarbough factors must be present.                        In fact, "a

sentencing court may impose consecutive sentences even though a

majority of the Yarbough factors support concurrent sentences."

State v. Carey, 168 N.J. 413, 427-28 (2001).                    Apt to this matter,

our Supreme Court has held "crimes involving multiple victims

represent an especially suitable circumstance for the imposition

of consecutive sentences because the 'total impact of singular

offenses against different victims will generally exceed the total

impact on a single individual who is victimized multiple times.'"

State v. Molina, 168 N.J. 436, 442 (2001) Ibid. (quoting State v.

Carey, 168 N.J. 413, 775 A.2d 495 (2001) (quoting People v. Leung,

5   Cal.   App.    4th     482,   7   Cal.      Rptr.   2d    290,    303-04     (1992)).

Accordingly, "the multiple-victims factor is entitled to great

weight."    Ibid.

      Our review reveals the judge's findings are based on the

credible evidence in the record and he properly considered and

weighed the applicable factors when considering the appropriate-

ness of imposing consecutive or concurrent sentences.                       We conclude

the judge did not abuse his discretion by imposing consecutive

sentences.         See   Yarbough,      supra,      100      N.J.    at   630    (stating

"sentencing       courts    should    be     guided     by    the    Code's     paramount

sentencing goals that punishment fit the crime, not the criminal

. . . ").

                                           13                                     A-5132-14T4
Affirmed.




            14   A-5132-14T4
