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VIII. CONCURRENT AND CONSECUTIVE


TERMS


A. Generally


N.J.S.A. 2C:44-5 creates a presumption of consecutive
terms whenever a defendant violates probation by
committing another offense while released on probation,
parole, or bail. State v. Sutton, 132 N.J. 471 (1993).


The application of amendment to N.J.S.A. 2C:44-5c
which reversed previous presumption of concurrent
sentences and provided that unless otherwise ordered by
trial court parole violation terms ran consecutively to
criminal sentences, to offender who was sentenced on
original offense before effective date of that enactment but
violated parole after effective date, did not violate ex post
facto clause. Loftwich v. Fauver, 284 N.J. Super. 530 (App.
Div. 1995).


N.J.S.A. 2C:44-5h was amended to create a
presumption that a sentence for a crime committed while
awaiting trial on other charges be served consecutively with
any other term of imprisonment imposed. This
presumption applies only to offenses committed after June
29, 1993.


Consecutive sentence provisions of the Code, N.J.S.A.
2C:44-5, do not apply to sentences imposed in foreign
jurisdictions. Breeden v. N.J. Dept. of Corrections, 132 N.J.
457, 466 (1993). Nevertheless Court can make New Jersey
sentence consecutive to federal sentence. State v.
Mercadante, 299 N.J.Super. 522, 532 (App. Div.), certif.
denied 150 N.J. 26 (1997); State v. Walters, 279 N.J. Super.
626, 634 (App. Div. 1995).


Plea agreements can be considered and weighed in
decision to impose consecutive sentences. State v. S.C., 289
N.J. Super. (App. Div.), certif. denied 145 N.J. 373 (1996).


Court cannot make sentence concurrent to a
previously expired sentence. State v. Mercadante, 299 N.J.
Super. at 532.


Court cannot impose partially concurrent and
partially consecutive sentences. State v. Rogers, 124 N.J.
113 (1991).


Juveniles who have committed two or more acts of
delinquency may be sentenced to consecutive terms. State
in the Interest of J.L.A., 136 N.J. 370 (1994); State in the
Interest of G.C., 136 N.J. 383 (1994).


Trial court must impose concurrent rather than
consecutive suspensions of driving privileges on offenders
who are sentenced on the same day for multiple drug
offenses. State in the Interest of T.B., 134 N.J. 382 (1993).

When consecutive sentences are imposed the sentence
most restrictive of the defendant’s liberty shall be served
first. State v. Lane, 279 N.J. Super. 209, 223 (App. Div.),
certif. denied 141 N.J. 94 (1995).

Court must clearly state reasons for consecutive
sentences. State v. Mosch, 214 N.J. Super. 457 (App. Div.
1986), certif. denied 107 N.J. 131 (1987).

The factors relied on to sentence defendant to the
maximum term for each offense should not be used again to
justify imposing those sentences consecutively. State v.
Miller, 108 N.J. 112 (1987); State v. Ghertler, 114 N.J. 383,
392 (1989). Where the offenses are closely related, it would
ordinarily be inappropriate to sentence a defendant to the
maximum term for each offense and also require that those
sentences be served consecutively, especially where the
second offense did not pose an additional risk to the victim.
Id.

B. Yarbough Guidelines

Guidelines for imposition of concurrent or consecu-
tive sentences are set forth in State v. Yarbough, 100 N.J.
627 (1985), cert. denied 475 U.S. 1014 (1986).

Yarbough “no free crimes” criteria does not require
consecutive sentences on every additional crime. Rather, in
imposing sentence for each crime in a series, the court
should take into account the aggravating and mitigating
factors and then consider the Yarbough criteria. State v.
Rogers, 124 N.J. 113 (1991).

C. One Incident

Consecutive sentences can be imposed on multiple
convictions arising from one incident involving one victim
but which is comprised of distinct and dissimilar offenses.
State v. Mosch, 214 N.J. Super. 457, 462-466 (App. Div.
1986), certif. denied 107 N.J. 131 (1987).

Where separate crimes grow out of the same series of
events or from same factual nexus, consecutive sentences
should not be imposed. State v. Lester, 271 N.J. Super. 289,
293 (App. Div. 1994), certif. denied 142 N.J. 453 (1995).

Imposition of five consecutive life sentences for the
murders of defendant’s wife, mother and children was
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