State v. Kosch, 458 N.J. Super. 344

Background

Defendant Kosch was convicted at trial of multiple counts across two indictments (187 and 188); the trial produced seven convictions from 188 and one from 187 (denoted "count eleven").
Original sentencing imposed an aggregate 20-year term (including a 15-year extended term with six years parole ineligibility on count one) by stacking two groups of concurrent sentences consecutively.
This Court (Kosch I) reversed three theft-of-immovable-property convictions (counts one, six, eight) and remanded for retrial, directing that resentencing await final disposition of those counts.
After the trial judge failed to comply with the mandate and improperly shelved the remanded counts, this Court vacated the subsequent resentencing; the State then voluntarily dismissed the three reversed counts and the judge resentenced Kosch to the same aggregate term by imposing a 15-year extended term (with six-year parole ineligibility) on the previously seven-year count eleven.
Kosch appealed, arguing (1) the April 6, 2015 order dismissing indictment 187 was an acquittal that barred reconvicting or reimposing sentence (double jeopardy/due process), (2) increasing count eleven from seven to fifteen years violated double jeopardy/due process, and (3) the overall sentence was excessive.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Kosch)	Held
Whether the April 6, 2015 order dismissing Indictment 187 operated as an acquittal preventing later conviction or sentencing on count eleven	The April 6 order was a mistake later rescinded; it did not acquit or preclude further action because Kosch was already convicted and the judge lacked jurisdiction while appeal was pending	The April 6 dismissal was effectively an acquittal (Blacknall), so reinstating or resentencing on that count violates double jeopardy	Court: April 6 order was a mistaken entry subsequently rescinded; not an acquittal and did not bar later sentence because Kosch had been convicted and the judge lacked jurisdiction to dismiss while appeal pending
Whether increasing the sentence on count eleven from 7 to 15 years violated double jeopardy or due process	Resentencing was permitted; Rodriguez and its progeny allow restructuring of interdependent sentences so long as aggregate sentence does not exceed original	Increasing the term on count eleven amounted to an impermissible increase in punishment for a conviction already being served	Court: No double jeopardy/due process violation because overall aggregate sentence was unchanged and precedent (Rodriguez, Young) permits restructuring to preserve aggregate term
Whether imposing an extended term plus a consecutive sentence was legally improper	State defended the sentence as within judicial authority and consistent with past aggregate sentence	Kosch argued the combination (extended term + consecutive run) and increasing count eleven was improper and excessive	Court: Combination is not per se illegal, but it triggers close scrutiny; the record lacked adequate individualized sentencing justification, so remand for resentencing is required
Whether the aggregate sentence was excessive and whether resentencing should be by a different judge	State maintained sentence recreated original aggregate and thus was acceptable	Kosch argued same aggregate for lesser convictions was excessive and shocked the conscience	Court: Constitutional authority existed but sentencing record did not explain why same aggregate was warranted after dismissal of three convictions; remand for resentencing by a different judge ordered

Key Cases Cited

United States v. DiFrancesco, 449 U.S. 117 (U.S. 1980) (sentence pronouncement lacks finality of acquittal; different double jeopardy treatment on resentencing)
State v. Rodriguez, 97 N.J. 263 (N.J. 1984) (permitted restructuring sentences after appeal so long as aggregate is not exceeded)
State v. Young, 379 N.J. Super. 498 (App. Div. 2005) (allowed imposition of extended term on remaining conviction after reversal of other convictions where aggregate remained the same)
State v. Blacknall, 288 N.J. Super. 466 (App. Div. 1995) (judge’s erroneous dismissal at close of State’s case constituted an acquittal for double jeopardy purposes)
Barnes v. State, 84 N.J. 362 (N.J. 1980) (analysis whether judge’s action amounted to acquittal for jeopardy purposes)
Martin Linen Supply Co. v. United States, 430 U.S. 564 (U.S. 1977) (defining when judicial action constitutes an acquittal)
State v. Espino, 264 N.J. Super. 62 (App. Div. 1993) (applying Rodriguez principles to permit adjustment of interdependent sentences)
State v. Roth, 95 N.J. 334 (N.J. 1984) (sentence must not shock the judicial conscience)