cdTOCtest

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