State of New Jersey v. Kevin J. Williams

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1254-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN J. WILLIAMS, Defendant-Appellant. _______________________ Submitted September 15, 2026 – Decided November 13, 2026 Before Judges Gooden Brown and Bergman. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 21-10- 1253. Jennifer N. Sellitti, Public Defender, attorney for appellant (Rebecca Van Voorhees, Assistant Deputy Public Defender, of counsel and on the briefs). LaChia L. Bradshaw, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). PER CURIAM  Following a jury trial, defendant Kevin J. Williams was convicted of two counts of first-degree aggravated sexual assault and four counts of second- degree sexual assault. He received a forty-one-year aggregate sentence that encompassed periods of parole ineligibility and two consecutive sentences. The convictions stemmed from defendant's sexual abuse of his then six-year-old niece while he resided with his niece and her parents, defendant's sister and brother-in-law. The State's proofs at trial included testimony from defendant's sister, S.S.;1 the victim, C.S.; a detective who interviewed the victim; as well as video recordings of those interviews. 2 During a consensual interception of a recorded telephone conversation admitted at trial, 3 S.S. confronted defendant with the allegations and defendant subsequently confessed in an email to S.S. During his 1 We use initials to protect the confidentiality of the victim in accordance with N.J.S.A. 2A:82-46(a) and Rule 1:38-3(c)(9). 2 After a Rule 104(a) hearing, the recordings were admitted under the tender- years exception to the hearsay rule, N.J.R.E. 803(c)(27). 3 "Pursuant to N.J.S.A. 2A:156A-4(c) . . . . law enforcement officers may intercept and record a telephonic communication when a party to the conversation allows them to listen in on the phone call. Recordings made under this provision are known as 'consensual interceptions.'" State v. Barclay, 479 N.J. Super. 451, 456 (App. Div. 2024). A-1254-24 2 trial testimony, he claimed his confession was false and intended to appease his sister. At trial, the State also introduced a suicide note written by the victim at age ten. In the note, which the victim read to the jury, C.S. disclosed the sexual abuse, said goodbye to her family and friends, and thanked her parents for the life they had given her. In his comments to the jury, the prosecutor re-read the suicide note and asked the jurors to imagine themselves in the shoes of the victim or her parents. On appeal, defendant raises the following points for our consideration: POINT I THE VICTIM'S SUICIDE NOTE WAS WILDLY PREJUDICIAL AND INADMISSIBLE AT TRIAL. (Not Raised Below). A. The Suicide Note Was Inadmissible Under N.J.R.E. 403. B. The Harm From the Letter's Erroneous Admission Was Compounded by the Prosecutor's Rereading of the Letter, and His Repeated Invitations that the Jury "Imagine" Being the Victim Contemplating Suicide or Her Parents Discovering Her Suicide Note. A-1254-24 3  POINT II [DEFENDANT] MUST BE RESENTENCED BECAUSE THE COURT FAILED TO PROVIDE ANY ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS, AND BECAUSE IT IMPOSED CONSECUTIVE SENTENCES ABSENT THE NECESSARY YARBOUGH/TORRES[4] ANALYSIS. (Not Raised Below). A. The Sentencing Court Failed to State the Reasons for Finding Any of the Aggravating and Mitigating Factors. B. The Sentencing Court Failed to State a Sufficient Justification for Imposing Consecutive Sentences. We have considered these arguments in light of the record and applicable legal principles. Based on our review, we affirm defendant's convictions but remand for further sentencing proceedings consistent with Torres. I. On October 29, 2021, defendant was charged in a Burlington County indictment with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), (counts one and two); four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), (counts three through six); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), 4 State v. Yarbough, 100 N.J. 627 (1985); State v. Torres, 246 N.J. 246 (2021). A-1254-24 4 (count seven). The charges pertained to sex acts occurring between December 2015 and the end of 2017, involving different intimate body parts. We glean these facts from the ensuing four-day trial conducted in July 2024. In the early morning hours of August 27, 2020, S.S. awoke to the sound of "doors opening and closing" in her home. When she went to investigate the source of the sound, she found C.S., who was then ten years old, crying at the top of the staircase. S.S. spent the next several hours trying to comfort C.S. who was curled up "in a little ball" and "shaking." Later that morning, as he was leaving for work, S.S.'s husband, D.S., found a suicide note written by C.S. In the note, C.S. disclosed defendant, who had lived with the family for brief periods of time between 2015 and 2017, had sexually assaulted her when she was younger. The note read in part: By the time you are reading this, I'll be gone. The first thing I wanted to say is that, Mom, you were the greatest mom I could ever have. I mean it. Dad, I love you so much. And for my little bugatron, [5] I love you so much. I can't put it into words. . . . I wanted you all to remember me as a happy, funny, and fiery [C.S] I tried to be. I didn't show I loved Bug because I didn't want her to get attached so this could be easier. It didn't work. You can tell my friends I loved them as much as a friend should, and that they were the best friends a girl could ask for. 5 At the time, C.S. had one baby sister. A-1254-24 5  .... Mom, this will sound crazy, but Kevin raped me when I was the age of six years old. He did it at night so no one would know. He promised that he would play with me if I let him do what he wanted. He called my vagina a muffin. I hope that the people putting him in a jail cell believe me. None of this is my family's fault. . . . Mom and Dad, you have no faults in the way you brought me up. I thank all of the people that shaped me into who I am or was. . . . Farewell. S.S. and D.S. took C.S. to the hospital for a mental health evaluation and then to the Burlington County Prosecutor's Office (BCPO) where former BCPO Sergeant Ericka Ridge conducted two recorded forensic interviews of C.S. During the first interview conducted on September 1, 2020, C.S. told Ridge that one night, defendant came into her room and attempted to take her clothes off, but she punched him in response and he left. During the second interview conducted on September 9, 2020, C.S. stated defendant would come into her room at night and make her remove all her clothes. C.S. related defendant would put his penis inside her mouth and put his mouth on her vagina. At trial, C.S. recalled wanting to end her life and admitted writing the suicide note which she read to the jury. She acknowledged being "very vague" A-1254-24 6 during her first interview with Ridge but made a full disclosure during the second interview. C.S. testified defendant would come to her room at night, make her remove her clothes or remove them for her, "put his penis in [her] mouth," and "put his mouth and his tongue on [her] vagina" while she laid back on her bed. According to C.S., defendant's tongue would "lick" her vagina but she did not recall whether "it ever went inside or not." C.S. said the sex acts occurred around ten times. As part of the investigation, on December 10, 2020, at the BCPO's request, S.S. agreed to a consensual interception of a telephone call with defendant. During the recorded call, which was played for the jury, S.S. confronted defendant with the allegations. Initially, defendant denied the allegations. However, after S.S. pressed him for details, defendant responded it was not his "proudest moment," apologized to S.S., and asked if he could send her a detailed response in an email. S.S. agreed. Less than an hour later, defendant sent S.S. an email with an attachment titled "Blah." He asked S.S. to delete the email and attachment once she finished reading them. In the attachment, defendant first apologized for "scarring" C.S., reiterated it "was not [his] finest moment," and acknowledged he made some "awful decisions." He stated: A-1254-24 7  [C.S.] has seen and touched, grabbed, felt my penis. She has performed oral sex on me no more than two or three times. I have seen [C.S] naked. I have touched, felt, rubbed her vagina, butt and nipples. I performed oral sex on her. This was the bulk of the interaction. One big point is that we never had intercourse. I will admit that I did ask if she wanted to try, but she always said no. This is the story for how this started, if you'd like to hear it, not that it excuses any of it. I will say that she expressed interest first with wanting to know what a penis looks like. And, of course, I made the foolish mistake of going through with it. I did not intend to keep up the interactions past the initial curiosity. I honestly don't remember who brought up what topics or acts. They were used as sort of a bartering system in that she wanted me to play video games with her. We came up with a system where acts would be performed maybe [fifteen] seconds or less total. And then I would play video games like Minecraft or Fortnite with her for an hour or two. Sometimes she would ask and sometimes I would. The asking moved into bedtime. Sometimes she would ask me and other times I ask her to come into her room at night or to do something quickly before bedtime. This happened for a while. My sense of time is always warped, plus I force myself to forget a lot of specifics. So I'm not sure how long it actually was or when it started. We both knew it was wrong. And I remember she said she would throw me under the bus if it ever got out. Please believe me when I say I'm not trying to toss blame her way. I understand it's my fault for not mentally being an adult, but she did know what was happening and oftentimes invited it. A-1254-24 8  In his trial testimony, 6 defendant, then thirty-four years old, denied the allegations. He testified he "admitted to things that didn't happen just to appease [his] sister" and apologized in the attachment because "[t]hat is what any normal person would do when confronted with those allegations." He explained that his sister "would become mentally unstable" and "put herself in these situations, and then try to force them upon others at the time." By writing the attachment admitting to sexual contact with C.S., he "wanted to help [his] sister" because "she was slipping back into that mental instability." The jury found defendant guilty of counts one through six and not guilty of count seven. After he was sentenced, the judge entered a conforming judgment of conviction on December 3, 2024, and this appeal followed. II. In Point I, for the first time on appeal, defendant argues C.S.'s suicide note "was inadmissible under Rule 403[] because its probative value was far outweighed by its undue prejudice." Specifically, defendant argues that "[m]ost of the contents of the letter had absolutely no bearing on her accusations of 6 Prior to testifying, defendant unsuccessfully moved for judgment of acquittal as to count four, alleging sexual contact by touching C.S.'s buttocks, and seven, alleging child endangerment by engaging in sexual conduct with C.S. See R. 3:18-1. A-1254-24 9 abuse" and "unquestionably evoked the jury's deep sympathies and inflamed their passions." Defendant asserts even if "any portion of the letter was admissible, reversal is still necessary because the trial court failed to sanitize the letter of its most wholly irrelevant and most inflammatory material" and failed to instruct the jury "on the appropriate non-hearsay uses of the letter." Further, defendant urges the prosecutor's repeated emphasis on the letter in his opening and summation served to exacerbate the harm of its admission. Because defendant did not object to the admission of the letter, we review the issue for plain error. "Under that standard, an unchallenged error constitutes plain error if it was 'clearly capable of producing an unjust result.'" State v. Clark, 251 N.J. 266, 287 (2022) (quoting R. 2:10-2). "This is a 'high bar[.]'" State v. Trinidad, 241 N.J. 425, 445 (2020) (quoting State v. Santamaria, 236 N.J. 390, 404 (2019)). "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Clark, 251 N.J. at 287 (quoting State v. Melvin, 65 N.J. 1, 18-19 (1974)). "To determine whether an alleged error rises to the level of plain error, it 'must be evaluated in light of the overall strength of the State's case.'" Ibid. (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)) (internal quotation marks omitted). A-1254-24 10  "Relevancy is the hallmark of admissibility of evidence." State v. Darby, 174 N.J. 509, 519 (2002). "N.J.R.E. 401 defines '[r]elevant evidence' as 'evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.'" State v. Cole, 229 N.J. 430, 447 (2017) (alteration in original) (quoting N.J.R.E 401). "Under N.J.R.E. 401, '[e]vidence need not be dispositive or even strongly probative in order to clear the relevancy bar.'" Id. at 447-48 (alteration in original) (quoting State v. Buckley, 216 N.J. 249, 261 (2013)). "Once a logical relevancy can be found to bridge the evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted under a specific evidence rule." State v. Burr, 195 N.J. 119, 127 (2008). One such rule excluding relevant evidence is N.J.R.E. 403. That rule mandates the exclusion of evidence that is otherwise admissible "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E 403. [Cole, 229 N.J. at 448.] When a defendant relies on the "undue prejudice" prong of N.J.R.E. 403, the inquiry "is whether the probative value of the evidence 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable A-1254-24 11 capacity to divert the minds of the jurors from a reasonable and fair evaluation of the' issues." Ibid. (alteration in original) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). "It is not enough for the opposing party to show that the evidence could be prejudicial; '[d]amaging evidence usually is very prejudicial but the question here is whether the risk of undue prejudice was too high.'" Ibid. (alteration in original) (quoting State v. Morton, 155 N.J. 383, 453-54 (1998)). Still, "[i]n deciding whether to exclude evidence based on its potential for prejudice, 'a court must consider the availability of other evidence that can be used to prove the same point.'" State v. Long, 173 N.J. 138, 164 (2002) (quoting State v. Covell, 157 N.J. 554, 569 (1999)). The tender years hearsay exception provides grounds for the admission of the letter. Under the tender years exception to the hearsay rule, N.J.R.E. 803(c)(27), a child's out-of-court statement concerning acts of sexual abuse is admissible in a criminal prosecution "under certain circumstances[.]" State v. D.R., 109 N.J. 348, 363 (1988). N.J.R.E. 803(c)(27) provides: A statement made by a child under the age of [twelve] relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil case if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in A-1254-24 12  a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse . . . . To avoid Confrontation Clause conflicts, sufficient indicia of reliability or trustworthiness is the focus of the rule. State v. P.S., 202 N.J. 232, 248-49 (2010). To assess trustworthiness, courts consider factors such as "spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of similar age, interrogation, and manipulation by adults." State v. D.G., 157 N.J. 112, 125 (1999) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 827 (1990)). Our review of the record convinces us a trial court could conclude the letter was relevant and admissible under N.J.R.E. 803(c)(27). In the letter, C.S. contemplated suicide and accused defendant of sexually assaulting her at night when she was six years old. Because defendant did not object to the admission of the letter, the judge did not rule on its admissibility during the Rule 104(a) hearing pertaining to C.S.'s recorded statements to Ridge. Nonetheless, the same trustworthiness factors the judge considered in admitting C.S.'s statements to Ridge applied with equal force to the letter. A-1254-24 13  In that regard, the judge stated: Now, in this matter, this statement came approximately four years after the alleged incidents occurred and . . . the [c]ourt gathers from the testimony of Ms. Ridge as well as C.S., the interaction between Ms. Ridge and C.S. is there was a letter written by C.S. which her parents found which sort of started the process. DCP&P [7] then became involved. It was then referred to the prosecutor's office and that's how . . . these interviews came about. That letter, the [c]ourt finds was spontaneous. There was nothing about that letter at least in the testimony that it appears to this court that C.S. wrote that on her own but nobody asked her to write it, nobody told her to write it, and it was something that was in the trash that her parents actually found. So, the [c]ourt found that that . . . which started this process was spontaneous. Moreover, defendant had notice of the State's intention to introduce the letter, an opportunity to cross-examine C.S. when she testified at trial, and corroborating proof of sexual abuse based on defendant's confession in the e- mail attachment. See State v. R.B., 183 N.J. 308, 318 (2005) (explaining that a hearsay statement made by a child under twelve is admissible under N.J.R.E. 803(c)(27) when there has been notice of intention to use the hearsay statement, 7 The Division of Child Protection and Permanency. A-1254-24 14 a pre-trial judicial finding of trustworthiness, and either the opportunity to cross - examine the child at trial or corroborating proof of the act of sexual abuse ). Thus, the requisite elements for admissibility of the letter under the tender years exception to the hearsay rule were present. Defendant argues even if portions of the letter were admissible, the judge should have sua sponte sanitized the letter due to the inflammatory and unduly prejudicial facts included. According to defendant, C.S.'s "devastating farewells to her friends and family, which were wholly unnecessary to the State's case, inflamed the jury's emotions, [and] impermissibly bolstered [C.S.'s] credibility." We agree that to avoid undue prejudice to defendant, sanitizing the letter to redact C.S.'s farewells to her friends and family would have been preferable. However, we conclude presenting the un-sanitized version of the letter to the jury did not rise to the level of plain error. Indeed, given the overwhelming evidence of guilt presented by the State, we conclude the judge's failure to sanitize the letter sua sponte did not lead the jury to a result it otherwise would not have reached. See State v. C.W.H., 465 N.J. Super. 574, 597 (App. Div. 2021) ("When applying the plain error doctrine to evidence that should have been excluded, 'a reviewing court may consider whether, absent the evidence admitted in error, there was overwhelming A-1254-24 15 evidence of the defendant's guilt.'" (quoting State v. Tung, 460 N.J. Super. 75, 98-99 (App. Div. 2019))). We reach the same conclusion in connection with defendant's prosecutorial misconduct argument. Defendant argues the way the prosecutor used the suicide note as the central theme in his opening and closing arguments "compounded the prejudicial impact of the letter and further inflamed the jury's passions—further distracting them from their solemn duty." Specifically, defendant objects to the following comments made by the prosecutor during openings: [I]magine going to sleep on any given day, . . . you go to sleep that night with a relatively clear state of mind. The next thing you know, you wake up, and your whole world is turned upside down. Your whole entire world is turned upside down. That is precisely what happened to [C.S.'s parents]. Defendant objects to the prosecutor's additional comment asking the jury to "[i]magine having to read a note written by your [ten]-year-old daughter suggesting she wants to leave." Defendant also objects to the prosecutor referencing the letter multiple times during closing arguments, including beginning his summations by reading the letter's opening paragraph. The prosecutor then continued: A-1254-24 16  Imagine being ten years old, being so sad, so despondent, so confused . . . so despondent that at ten years old you write those words. Think about that. What should ten-year-olds be doing? Ten-year-olds should be out having fun, playing in a park, playing at the local pool, playing with their friends. They should not be so despondent that they're contemplating a way of getting out of life at the age of ten. The prosecutor added: Notwithstanding all the horror, notwithstanding this dark cloud, [C.S.] won. And you might be thinking how could I say that. How can you stand here in front of me and say that she won? Well, it's now July 23rd of 2024, and she's alive. Notwithstanding what happened to her, she's alive. Later in his closing, the prosecutor invited the jurors to imagine themselves in C.S.'s parents' position: When [D.S.] goes downstairs, he finds the note. I just read passages of it, folks, but it is every parent's worst nightmare. Just imagine that. Imagine if you have children, grandchildren, if your significant others have children. Imagine going downstairs and seeing something that references I'll be gone. I want you to remember me as the happy, funny and fiery [C.S.] I tried to be. None of this is my family's fault. The prosecutor also referenced C.S.'s parents' fear for C.S.'s well-being after reading the note. He told the jury, "They were worried about kitchen knives. They were worried about the medicine cabinet and making sure that the medicine wasn't taken." A-1254-24 17  None of these purported objectionable comments by the prosecutor rises to the level of plain error. It is axiomatic that a "prosecutor's comments must be confined to the evidence and the reasonable inferences to be drawn from the evidence," State v. W.L., 292 N.J. Super. 100, 111 (App. Div. 1996), and "[a] prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001). Prosecutorial misconduct is not grounds for reversal of a criminal conviction unless "the prosecutorial misconduct is clear and unmistakable and substantially prejudices a defendant's fundamental right to have a jury fairly evaluate the merits of the case." W.L., 292 N.J. Super. at 111. Thus, "even when a prosecutor's remarks stray over the line of permissible commentary, our inquiry does not end." State v. McNeil- Thomas, 238 N.J. 256, 275 (2019). Rather, we must weigh "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial," State v. Wakefield, 190 N.J. 397, 437 (2007), and reverse a conviction on the basis of prosecutorial misconduct only if "the conduct was so egregious as to deprive defendant of a fair trial," ibid. (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)). In deciding whether prosecutorial conduct deprived a defendant of a fair trial, "an appellate court must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to A-1254-24 18  improprieties when they occurred." [State v. Frost, 158 N.J. 76, 83 (1999)] (quoting State v. Marshall, 123 N.J. 1, 153 (1991)). Factors to be considered in making that decision include, "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. [State v. Williams, 244 N.J. 592, 608 (2021).] "In general, when counsel does not make a timely objection at trial, it is a sign 'that defense counsel did not believe the remarks were prejudicial' when they were made." State v. Pressley, 232 N.J. 587, 594 (2018) (quoting State v. Echols, 199 N.J. 344, 360 (2009)). Here, a thorough review of the record satisfies us that defendant's fundamental right to a fair trial was not substantially prejudiced by the prosecutor's opening or closing statements. The prosecutor's remarks were limited to the evidence of record and responded to defense counsel's characterization of the letter. In summations, defense counsel discussed the letter at length, including the following comment: Now, I'm not minimizing what's going on here, but I'm suggesting to you that this note is just as likely I'm going to run away as I'm going to harm myself. And make no mistake, there's no tragedy greater than somebody taking their life, especially if it's a child. But, again, the State's also going to argue that because A-1254-24 19  the allegation is couched in the terms of what everybody assumed was a suicide attempt, it must be true. And I'm suggesting to you it's not the case because, just as likely, [C.S.] told her mother she thought about running away. Given the evidence in the record, the prosecutor's remarks did not unfairly prejudice defendant and certainly did not rise to the level of plain error. III. In Point II, defendant argues the judge "failed to provide any qualitative analysis of the aggravating and mitigating factors," failed to consider "two mitigating factors raised by defense counsel," and "imposed consecutive sentences without conducting a Yarbough/Torres analysis." We review sentences "in accordance with a deferential standard," State v. Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute [our] judgment for those of our sentencing courts,'" State v. Cuff, 239 N.J. 321, 347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience." [Fuentes, 217 N.J. at 70 (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).] A-1254-24 20  Under New Jersey's penal code, "a sentencing court first must determine, pursuant to N.J.S.A. 2C:44-1(a) and (b), whether aggravating and mitigating factors apply. After balancing the factors, the trial court may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). In State v. Yarbough, 100 N.J. 627, 643-44 (1985), our Supreme Court set forth guidelines for evaluating the threshold question of whether to impose concurrent or consecutive sentences pursuant to N.J.S.A. 2C:44-5(a). The Yarbough Court enumerated five specific facts sentencing courts should consider, including whether or not: (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; (e) the convictions for which the sentences are to be imposed are numerous. [Id. at 644.] A-1254-24 21  "The Yarbough factors serve much the same purpose that aggravating and mitigating factors do in guiding the court toward a sentence within the statutory range," State v. Abdullah, 184 N.J. 497, 514 (2005), and "should be applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427 (2001); see also State v. Molina, 168 N.J. 436, 442 (2001) (affirming consecutive sentences although "the only factor that support[ed] consecutive sentences [was] the presence of multiple victims"). In Abdullah, the Court reminded trial judges "that when imposing either consecutive or concurrent sentences, '[t]he focus should be on the fairness of the overall sentence,' and that they should articulate the reasons for their decisions with specific reference to the Yarbough factors." 184 N.J. at 515 (alteration in original) (quoting State v. Miller, 108 N.J. 112, 122 (1987)). In Torres, the Court directed that when imposing lengthy consecutive sentences, "an explanation for the overall fairness of a sentence by the sentencing court is required" in order to curtail and, if necessary, correct "'arbitrary or irrational sentencing.'" 246 N.J. at 272 (quoting State v. Pierce, 188 N.J. 155, 166-67 (2006)). Thus, consideration of the fairness of the overall sentence is "a necessary feature in any Yarbough analysis." Cuff, 239 N.J. at 352. A-1254-24 22  Prior to sentencing, defendant underwent an evaluation at the Adult Diagnostic Treatment Center at Avenel pursuant to N.J.S.A. 2C:47-1. The evaluation determined defendant's behavior was the result of his compulsive and repetitive conduct and placed him "in the [a]verage [r]isk range to commit a criminal sexual offense in the future." After considering the Avenel evaluation along with defendant's presentence report, the judge sentenced defendant to twenty-five years in prison, with a twenty-five-year period of parole ineligibility, for each aggravated sexual assault (counts one and two), 8 to run concurrently with each other; eight years in prison subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, for each sexual assault (counts three through six), with counts three and five concurrent with each other and the other counts and counts four and six consecutive to each other and the other counts. The judge also sentenced defendant to parole supervision for life, N.J.S.A. 2C:43-6.4, and imposed restrictions under Megan's Law, N.J.S.A. 2C:7-1 to -23. 8 The sentences on counts one and two were imposed pursuant to the Jessica Lunsford Act, N.J.S.A. 2C:14-2(a), requiring a mandatory minimum prison term of twenty-five years, of which the defendant shall serve twenty-five years before being eligible for parole. Ibid. A-1254-24 23  In imposing sentence, the judge found aggravating factors one, two, three, and nine applied based on the nature and circumstances of the offenses, the gravity of the harm inflicted on the victim, the risk of re-offense, and the need for deterrence. See N.J.S.A. 2C:44-1(a)(1), (2), (3), (9). The judge found mitigating factors three and seven applied based on the findings of "repetitive and compulsive behavior" in the Avenel evaluation that subjected defendant to strong provocation and the fact that defendant had no prior criminal history. See N.J.S.A. 2C:44-1(b)(3), (7). The judge did not find the other mitigating factors argued by defense counsel in mitigation of sentence 9 and was "clearly convinced that the aggravating factors outweigh[ed] the mitigating factors." In considering the State's request for the imposition of consecutive sentences pursuant to Yarbough, the judge acknowledged there was a single victim and a single location involved. However, the judge found there were different sexual acts committed upon a six-year-old victim "over a substantial period of time." After comparing the allegations in the indictment to the 9 Defense counsel argued mitigating factors nine and ten applied. See N.J.S.A. 2C:44-1(b)(9) ("[t]he character and attitude of the defendant indicate that the defendant is unlikely to commit another offense"); N.J.S.A. 2C:44-1(b)(10) ("[t]he defendant is particularly likely to respond affirmatively to probationary treatment"). A-1254-24 24 testimony elicited at trial, the judge concluded concurrent sentences would not h