On March 31, 2022, a three-judge appellate panel decided the Gloucester County case of State v. Rami Amer. The principal issue under N.J.S.A. 2C:44-5 concerned the overall fairness of the consecutive sentences imposed.
Judge Enright wrote for the Court in relevant part: Recently, the New Jersey Supreme Court reinforced the standards for imposing consecutive sentences and held that “essential to a proper Yarbough sentencing assessment” is “an explicit statement, explaining the overall fairness of a sentence imposed on a defendant for multiple offenses in a single proceeding.”
Here, the judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3) (risk of re-offense), (6) (prior criminal history), and (9) (need to deter), and gave these factors “significant weight.” Additionally, he found mitigating factor six, N.J.S.A. 2C:44-1(b)(6) (defendant will compensate the victims for damages sustained) and afforded this factor “moderate weight.” The judge also concluded the aggravating factors substantially outweighed the mitigating factor.
We see no reason to second-guess the judge’s aggravating and mitigating factors analysis, considering defendant’s history of substance abuse and significant criminal record, which consisted of “twenty-five felony convictions, and three misdemeanor disorderly persons convictions,” many resulting from burglaries in Pennsylvania during the same period he committed multiple burglaries in New Jersey.
Also, we note that when he applied the Yarbough factors, the judge carefully explained why he found the prison terms imposed should run consecutively, and why he rejected defendant’s argument for concurrent sentences. Although defendant urged the judge to impose concurrent sentences for each offense, based on his offenses being “fairly compact” in time and place, and committed with “one sole objective” for committing the crimes, namely “to feed his drug habit,” the judge rejected this argument, explaining:
The events of each day appear to be a continuum of criminal activity on the part of the defendant, such that those particular events should run concurrent to each other. However, I do find that the defendant made a conscious decision from one date to the next to go back out and continue his criminal activity. It would be another thing if he continued through the daylight hours into the following day, and the next day, to continue to commit his burglaries along the way, but each individual date he consciously decided to go back out and commit more burglaries rather than stop his criminal behavior. Also, where he had an opportunity to reflect potentially on the criminal behavior the night or the day before, that reflection did not curb his criminal activity. He went back out making that conscious choice.
The consecutive versus concurrent issue is a common one with criminal appeals. The existence of separate victims is usually a deciding factor. There are appellate opinions that support consecutive sentences even when two victims are harmed simultaneously, i.e., with no time for the defendant to reflect on the harm to the first victim.
