The three-judge panel continued in relevant part: The abbreviated supplemental language in the motion order denying leave to appeal was not intended to circumscribe the scope of a full resentencing on the merits. It was a decision on an emergent leave to appeal motion focused on access to DCPP records. It was not intended to limit the thorough discussion of defendant’s sentence in the direct appeal decision.
A remand for resentencing envisions a new sentence hearing, except where expressly limited. When we comment on errors, such as the finding of a factor lacking support in the record, that statement is binding. See Tomaino v. Burman, (App. Div. 2003) “Clearly the appellate court’s instructions to the trial court on remand are binding on that court.” Nonetheless, that does not prevent the resentencing judge from finding the same factor so long as at the remand hearing sufficient evidence is presented to support it.
If a direct appeal opinion comments in a neutral, or even favorable manner upon other factors, it amounts to dicta, almost always in response to arguments counsel raise on appeal. Because we say, by way of examples, that sufficient support exists for a finding, or that the finding of a factor was not double-counting, or where we make similar observations, that does not mandate, should the evidence at a resentence hearing differ, that the judge reach the same conclusion. Comments of that nature may offer guidance, but do not freeze-frame the judge’s qualitative analysis, particularly where different proofs are offered. Circumstances evolve and people change over time. A judge’s hands are tied on a resentence only if we hold the finding of a particular factor, given the record as it then existed, was error. The judge, obviously, should not repeat the mistake. But he or she is free to view the whole person standing before the court at that moment, within the context of the crimes of which he or she has been convicted. The procedural delays inherent in appeals and remands makes for an interesting dynamic in cases like this. The defendant “that stands before the sentencing court” will almost always be different than the defendant that was originally sentenced years earlier. He is also likely to be different than the defendant that had his case remanded by the Appellate Division months earlier.
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