In defendant's original appeal, the court reversed three convictions of theft of immovable property and remanded for a new trial, leaving the other six convictions intact. State v. Kosch, 444 N.J. Super. 368 (App. Div.), certif. denied, 227 N.J. 369 (2016). The trial judge then resentenced defendant on the other six convictions – to the same aggregate sentence – without disposing of the three remanded charges; the court reversed because, among other things, the trial judge failed to comply with the prior mandate. State v. Kosch, 454 N.J. Super. 440 (App. Div. 2018). The State then voluntarily dismissed the three remanded charges, and the judge resentenced defendant; to reach an aggregate sentence the equivalent of the original sentence, the judge imposed for the first time a fifteen-year extended term on one of the remaining convictions – to which defendant had originally been sentenced to a non-extended seven-year term.
In this third appeal, the court followed State v. Rodriguez, 97 N.J. 263 (1984), and adhered to State v. Young, 379 N.J. Super. 498 (App. Div. 2005), in finding no double jeopardy or due process violations because the new sentence did not exceed in the aggregate that which was originally imposed and which defendant had begun serving. But the court also held that just because the sentencing judge possessed the constitutional authority to impose the same aggregate sentence didn't mean he should have. The court remanded for resentencing because, by imposing the same sentence, the judge failed to adequately appreciate the impact caused by the absence of three convictions on which the original sentence was imposed.