Possession of a Weapon and Consecutive Sentences (Part 3)

by | Nov 1, 2019 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County, Weapons Charge

The majority continued in relevant part: In sentencing defendant to consecutive terms for offenses committed within a single criminal episode, however, the trial court set forth findings that do not satisfy Yarbough, warranting a remand for resentencing with respect to those offenses.

For his conviction of second-degree unlawful possession of a weapon in connection with the February 28, 2011 incident in Cherry Hill, the trial court imposed a sentence consecutive to defendant’s sentences for first-degree kidnapping and other crimes committed in that incident. The court’s findings in support of that consecutive sentence were limited to a comment that “the elements of this offense are separate and distinct from the charges of kidnapping. The defendant possessed the weapon and did not have a permit for it, and there can be no free crimes.”

Although unlawful possession of a weapon could be viewed as independent of other crimes committed with the weapon in some settings for purposes of Yarbough‘s third factor, nothing in N.J.S.A. 2C:44-5(a) or our case law compels such a result in every case. See, e.g., State v. Copling (App. Div. 1999) (holding that the defendant’s sentences for murder and unlawful possession of a weapon should run concurrently, because both statutes under which defendant was convicted sought to protect the same victims, and the victims in the case “were part of the group of victims in society whom the possession statute sought to protect”). On remand, the court should reconsider its determination that defendant’s sentence for unlawful possession of a weapon in that incident should be consecutive to his sentences for other crimes committed on the same date. The court should provide a more detailed explanation of its reasoning, as Yarbough requires.

Here, the trial court’s “analysis” could apply to any case in which there is more than one conviction. If the avoiding of “free crimes” were enough to warrant a consecutive sentence, there would be no need for a Yarbough analysis.