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Date: 02-05-2020

Case Style:

State of New Jersey v. Keith V. Cuff

Case Number: A-79 September Term 2017

Judge: Anne M. Patterson


Plaintiff's Attorney: Maura Murphy Sullivan, Assistant Prosecutor

Defendant's Attorney:


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The Court granted certification limited to two of the issues defendant Keith V. Cuff raised on appeal from his nineteen -- later reduced to eighteen -- convictions: (1) defendant’s challenge to his conviction of three counts of first-degree kidnapping on the basis that, although the trial court instructed the jury on the elements of second-degree kidnapping as a lesser-included offense of first-degree kidnapping, the verdict sheet included no question addressing that offense; and (2) defendant’s challenge to the trial court’s imposition of consecutive sentences, which resulted in an aggregate ninety-eightyear sentence, with more than sixty-six years of parole ineligibility.

Defendant’s convictions and sentence relate to six incidents: (1) the June 24, 2010 armed robbery of a Cherry Hill resident in his home, where the victim was left with his hands tied behind his back and his ankles tied together; (2) the February 28, 2011 armed robbery of a Cherry Hill residence after which the parents -- who returned home during the robbery -- and their thirteen- and fourteen-year-old daughters -- who had been tied up for roughly an hour before their parents returned -- were left with their hands tied behind their backs; (3) the March 3, 2011 armed robbery of a Winslow Township man in front of his home; (4) the March 29, 2011 flight from and apprehension by police officers of a man who fled a stolen car; (5) the April 3, 2011 robbery of a family in Gloucester Township, after which a man and his fiancée, daughter, and son were left with their hands tied; and (6) the May 14, 2011 robbery of a man and woman in their home in Sicklerville.

Defendant was charged with fifty-five offenses, including eleven counts of firstdegree kidnapping relating to four of the incidents. He was tried before a jury over twelve days. At the close of evidence, the trial court conferred with counsel and prepared a jury charge. The court read the charge to the jury and sent the written instructions into the jury room for use during deliberations.

The jury charge addressed the jury’s obligation to consider not only charges set forth in the indictment, but also lesser-included offenses as instructed by the court. In the charge, the trial court addressed the eleven charges of first-degree kidnapping pending against defendant. The court set forth the elements of the first-degree offense, including

the element that defendant did not “release[] [the victim] unharmed and in a safe place prior to apprehension.” Tracking the pertinent Model Jury Charges, the trial court also instructed the jury about three lesser-included offenses: second-degree kidnapping, thirddegree criminal restraint, and the disorderly persons offense of false imprisonment. The verdict sheet provided spaces for the jury to record its verdict as to first-degree kidnapping, third-degree criminal restraint, and the disorderly persons offense of false imprisonment, as well as the other charges pending against defendant. It did not, however, include a space for the jury to determine whether defendant was guilty or not guilty of second-degree kidnapping. Defendant did not object to the verdict sheet.

During deliberations, the jury asked the trial court, “[i]f applicable, how do we denote second-degree on a charge in the verdict book?” After conferring with counsel, the court instructed, “[y]ou answer the questions as they are posed on the verdict sheet. . . . Each individual question as posed.” The jury convicted defendant of nineteen charges -- sixteen of the counts charged in the indictment and three lesser-included offenses. The jury convicted defendant of three counts of first-degree kidnapping as to the father and the two daughters from the February 28, 2011 incident in Cherry Hill. The jury acquitted defendant of the other kidnapping charges.

The trial court sentenced defendant. Invoking State v. Yarbough, 100 N.J. 627, 643-44 (1985), the court determined both that certain sentences relating to different criminal episodes should run consecutively and that certain sentences arising from crimes committed in the same criminal episodes should run consecutively. The Appellate Division affirmed the trial court’s determinations on the two issues relevant to this appeal: the omission of a reference to second-degree kidnapping on the verdict sheet; and the imposition of consecutive sentences. The Court granted certification limited to those issues. 234 N.J. 315 (2018).

HELD: The omission of second-degree kidnapping from the verdict sheet does not constitute plain error. The jury instruction accurately described the State’s burden of proof with respect to the elements of both first-degree and second-degree kidnapping, and directed the jury to consider second-degree kidnapping as a lesser-included offense if it did not find defendant guilty of the first-degree offense. Moreover, the evidence presented at trial did not provide a rational basis for a second-degree kidnapping conviction because the victims were not “release[d] . . . unharmed and in a safe place,” an element of the second-degree offense. N.J.S.A. 2C:13-1(c). Defendant was properly convicted of three counts of first-degree kidnapping. As to the sentence, the Court agrees with the Appellate Division that the terms imposed for most of defendant’s offenses constituted a proper exercise of the trial court’s discretion but concludes that the trial court should resentence defendant so that it may consider whether certain offenses committed within the same criminal episode warrant concurrent rather than consecutive sentences, as well as whether the decision to make the sentences consecutive rather than concurrent made the aggregate sentence imposed on defendant an abuse of discretion.

1. In a prosecution for first-degree kidnapping, the State must prove beyond a reasonable doubt that the victim was harmed or not released in a safe place prior to apprehension. See N.J.S.A. 2C:13-1(b)-(c). Here, the trial court properly explained that if the jury has “reasonable doubt as to whether the [S]tate has proven beyond a reasonable doubt that [defendant] knowingly harmed or knowingly did not release any of the alleged victims in a safe place prior to his apprehension, you should then find the defendant guilty of kidnap[p]ing in the second degree.” The issue raised by defendant on appeal arose from an omission in the verdict sheet, which listed the elements of first-degree kidnapping and then provided spaces for the jury to record a verdict of either “guilty” or “not guilty.” As to each victim, the verdict sheet instructed the jury to proceed to a question addressing the lesser-included offense of third-degree criminal restraint if it found defendant not guilty of first-degree kidnapping. The verdict sheet should have included, as to each victim, a similar inquiry about second-degree kidnapping. Defendant did not object to the omission of those questions, which the Court thus reviews for plain error. (pp. 16-20)

2. Where the oral instructions of a court were sufficient to convey an understanding of the elements to the jury, and where the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless. In State v. Galicia, the Court reviewed a verdict sheet that incorrectly “suggested that the jury would only reach the issue of passion/provocation if it found the defendant guilty of murder.” 210 N.J. 364, 375 (2012). The Court found the error harmless because there was no rational basis for the trial court to charge the jury as to the elements of passion/provocation. Id. at 385, 389. As in Galicia, there is no basis in this case for a finding of plain error. The jury had the trial court’s precise and accurate explanation of the first-degree and second-degree kidnapping standards -- not only as verbally delivered in court, but in written form in the jury room. The jury clearly understood it could acquit defendant of first-degree offenses and consider lesser-included offenses; indeed, with respect to eight other first-degree kidnapping counts, it either convicted defendant of lesser-included offenses or acquitted him entirely. The evidence in this case did not provide a rational basis to convict defendant of second-degree kidnapping. Here, it is undisputed that the three victims were left in their home with their hands tied behind their backs. Defendant “released” none of them within the meaning of N.J.S.A. 2C:13-1(c). The Court rejects the argument that the jury’s question, which could have pertained to many of the charges pending against defendant, indicates that the jury would have convicted him of second-degree kidnapping had the verdict sheet provided a place to record such a verdict. (pp. 20-29)

3. In Yarbough, the Court provided guidance for determining whether multiple sentences should run concurrently or consecutively, and directed sentencing courts to consider a collection of qualitative factors, including “facts relating to the crimes,” like whether “(a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of

the crimes involved multiple victims; [and] (e) the convictions for which the sentences are to be imposed are numerous.” Id. at 643-44. A sentencing court must explain its decision to impose concurrent or consecutive sentences in a given case. When a court fails to give proper reasons for imposing consecutive sentences at a single sentencing proceeding, ordinarily a remand should be required for resentencing. (pp. 30-33)

4. Defendant was sentenced for nineteen offenses committed in three separate criminal episodes. The trial court properly applied the Yarbough factors when it sentenced defendant to terms of incarceration running consecutively to the terms imposed for crimes committed in different criminal episodes. The court’s analysis upon imposing a consecutive sentence for the first-degree kidnapping of the fourteen-year-old victim during the February 28, 2011 incident also satisfied Yarbough because she and her sister were kidnapped approximately one hour before the first-degree kidnapping of her father and the third-degree criminal restraint of her mother. (pp. 33-35)

5. 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. The Court instructs that those determinations be reconsidered on remand and that a more detailed explanation of the court’s reasoning be provided. In resentencing defendant on remand, the trial court should consider the fairness of the aggregate sentence imposed for the eighteen offenses as to which defendant’s convictions have been affirmed -- a necessary feature in any Yarbough analysis. (pp. 35-38)

Outcome: The judgment of the Appellate Division is affirmed in part and reversed in part. The Court vacates defendant’s sentence, remands for resentencing, and retains jurisdiction to review the sentence imposed on remand.

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