State of New Jersey v. Raul Zarco

── State of New Jersey v. Raul Zarco ── Court: New Jersey Superior Court Appellate Division Date: May 14, 2026 Category: General NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0839-22 STATE OF NEW JERSEY, Plaintiff-Appellant, v. RAUL ZARCO, a/k/a RAUL RIVERA, ERICK ZARCO, ERIC ZARCO, and POMPO, Defendant-Respondent. _________________________ Submitted October 22, 2024 – Decided February 19, 2025. Remanded by the Supreme Court March 24, 2026. Resubmitted May 5, 2026 – Decided May 14, 2026 Before Judges Susswein, Perez Friscia and Bergman. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-09- 1092. Jennifer N. Sellitti, Public Defender, attorney for appellant (Stephen W. Kirsch, Designated Counsel, on the briefs).  Linda Estremera, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the briefs). PER CURIAM This case returns to us by order of the Supreme Court directing us to reconsider our opinion, State v. Zarco, No. A-0839-22 (App. Div. Feb. 19, 2025), in light of its recent decision in State v. Carlton, 262 N.J. 629 (2026). In our prior opinion, we affirmed defendant's trial convictions but remanded the case to the trial court for two reasons pertaining to sentencing: (1) for the court to amplify the reasons for imposing consecutive sentences and, specifically, to make an express finding with regard to the overall fairness of the aggregate sentence as required by State v. Torres, 246 N.J. 246 (2021); and (2) for the trial court to address the violation the constitutional rule established in Erlinger v. United States, 602 U.S. 821, 835 (2024), with respect to the court's determination that defendant was eligible for an extended term as a persistent offender. We now modify our remand order. In Erlinger, the United States Supreme Court held that a defendant is entitled under the Fifth and Sixth Amendments to have a jury unanimously determine, beyond a reasonable doubt, whether the defendant's past offenses were "committed on occasions different from one another" under the federal A-0839-22 2 Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). 602 U.S. at 835. The Erlinger majority, applying principles first announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), reiterated "there is no doubt what the Constitution requires in these circumstances: Virtually 'any fact' that 'increase[s] the prescribed range of penalties to which a criminal defendant is exposed' must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea)." Erlinger, 602 U.S. at 834 (alteration in original) (quoting Apprendi, 530 U.S. at 490). It is not disputed that Erlinger abrogated New Jersey's persistent offender statute to the extent that N.J.S.A. 2C:44-3(a), as presently drafted, provides that certain predicate facts are to be found by a court rather than a jury. The critical issue presented to our Supreme Court in Carlton was whether a violation of the Erlinger rule could be harmless constitutional error. The Court concluded that "errors in failing to submit sentencing factors or elements to a jury, as in Ap