STATE OF NEW JERSEY VS. JOHN C. VANNESS (13-01-0208, MONMOUTH COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1901-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN C. VANNESS a/k/a
JOHN C. VAN NESS,
Defendant-Appellant.
Submitted February 24, 2021 – Decided April 26, 2021
Before Judges Fuentes, Rose and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 13-01-
0208.
Joseph E. Krakora, Public Defender, attorney for
appellant (Candace Caruthers, Assistant Deputy Public
Defender, of counsel and on the briefs).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R. Juliano,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Tried to a jury, defendant John C. Van Ness was convicted of theft- and
fraudulent-related offenses for passing bad checks at a Sears department store
in Ocean Township. Following appropriate mergers, defendant was sentenced
to an aggregate five-year term of imprisonment, with a discretionary parole
disqualifier of thirty months pursuant to N.J.S.A. 2C:43-6(b). He now appeals
from the judgment of conviction (JOC) entered on December 17, 2018. For the
reasons that follow, we affirm defendant's convictions but remand for
resentencing.
I.
In January 2013, defendant was charged in a twelve-count Monmouth
County indictment with various offenses arising from his two-day crime spree:
third-degree theft by deception, N.J.S.A. 2C:20-4 (counts one, five, and nine);
third-degree forgery, N.J.S.A. 2C:21-1(a)(2) (counts three, seven, and eleven);
third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) (counts four,
eight, and twelve); and fourth-degree passing a bad check, N.J.S.A. 2C:21-5
(counts two, six, and ten).
Prior to defendant's first trial in 2014, the State dismissed all six forgery
and forged instrument charges (counts three, four, seven, eight, eleven, and
twelve). The jury found defendant guilty on the six remaining counts of theft
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by deception and passing bad checks (counts one, two, five, six, nine, and ten).
On November 13, 2014, defendant was sentenced to an aggregate prison term of
five years.
Defendant appealed, and we reversed his convictions and remanded for a
new trial. State v. Van Ness, 450 N.J. Super. 470, 499 (App. Div. 2017). This
court held defendant's constitutional right to counsel was violated by the trial
court's failure to determine whether defendant qualified for a public defender,
and its erroneous decision that defendant was capable of self-representation at
trial. Id. at 474.
Prior to defendant's present trial, the trial judge dismissed the six forgery
and forged instrument counts on defendant's motion with consent of the State.
Defendant's trial spanned four consecutive days in October 2018. We recount
only those facts presented at the trial that are most relevant to the issues raised
by defendant on appeal.
On November 11, 2012 – during the aftermath of Hurricane Sandy –
defendant purchased an air cleaner, humidifier, home generator, and gift card
from Sears. Defendant presented a business check for $995.08 to Sears cashier,
Shequelle Harris. The check was backdated to October 11, 2012 and drawn on
a Banco Popular account held by defendant and his business, V&V Machines.
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The account, which had a negative balance of $7,559.23, had been closed since
2009. Defendant was aware the account was closed and stipulated only to the
following facts at trial:
John Van Ness knew prior to November of 2012 that
his business checking account with Banco Popular
under the title V&V Machines bearing account number
xxxxxxxxx1 was closed.
Defendant asked Harris to "hold the check" and refrain from depositing it.
Although the store's protocol required Harris to verify the authenticity of the
check through a scanning device, she did not do so and processed defendant's
check as a cash transaction. Harris was inexperienced as a cashier, having been
hired by Sears two-and-one-half weeks earlier. When defendant asked when she
would be working again, Harris responded, "the next day."
The following day, defendant returned to Sears and purchased eight sets
of bed sheets and two coffee makers, totaling $957.55, at Harris's register.
Defendant again tendered a check from the same business account, backdated
one month to October 12, 2012, and instructed Harris to hold the check.
Less than an hour later, defendant returned to Sears and purchased an
additional four sets of bedsheets, two television mounts, and another coffee
maker, totaling $930.80, at Harris's register. Once again, defendant provided a
check from the same business account, backdated to October 12, 2012, and
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instructed Harris to hold the check. Defendant promised to return to Sears in
nine or ten days to pay for all items purchased on November 11 and 12, 2012.
Except for the gift card, defendant returned all items purchased from the
Ocean Township Sears to other Sears stores located in Hamilton and Toms
River. Defendant received cash for the returns. When he returned to the Ocean
Township Sears on November 20, 2012, staff summoned the police. Defendant
was arrested in the parking lot without incident.
Harris testified on behalf of defendant at his first trial. Because she was
unavailable to testify at the present trial, the judge granted defendant's
unopposed motion to admit her testimony, with certain redactions. Harris's
statement was admitted in evidence during the State's case-in-chief.
Harris acknowledged that defendant presented his driver's license with
each check. She believed the checks were legitimate because they appeared
"official." Harris would not have accepted the checks if she knew the checks
were "no good."
Jean Sarno, a loss prevention manager employed by Sears at the time of
the incident, noticed cash shortages from Harris's register and suspected fraud.
Sarno testified at the first trial but died prior to the present trial. Sarno's
testimony was not admitted in evidence at defendant's present trial, although
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some of her remarks were admitted through Harris's testimony. 1 As a few
notable examples, Harris testified that Sarno said defendant was "a very violent
man" and a "con artist" who "used false IDs" purchasing "stuff from certain
Sears" and returning it for cash. According to Harris, Sarno "intimidate[d]" her
by threatening to report Harris to the police as defendant's "accomplice" if she
failed to cooperate with the internal investigation conducted by Sears.
In addition to the prior testimony of Harris, the State presented the
testimony of Sears employees, an Ocean Township police officer, and Estelmari
Ramos, a branch supervisor at Banco Popular. Because Harris's statement was
read to the jury, defendant did not testify. Nor did he present the testimony of
any witnesses.
According to Ramos, the V&V Machines account was opened on February
26, 2008 and closed by Banco Popular on April 30, 2009 because the account
was overdrawn by $7,559.23. Ramos said the "account was charged off," which
"means it was overdrawn" and "pretty much a loss for the bank." The bank sent
written notice of the closure to the address on file. Bank records revealed
1
Prior to trial, the judge granted defendant's unopposed motion to preclude
admission of the testimony of any State witnesses who testified at the first trial
but were unavailable for the present trial.
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defendant had last made an "ATM balance inquiry" on March 3, 2009, when the
account had a negative balance of $6,544.23.
The jury found defendant guilty of all remaining six counts of the
indictment. Following defendant's sentencing, he filed this appeal.
On appeal, defendant raises the following points for our consideration:
POINT I
THE ADMISSION OF HIGHLY PREJUDICIAL AND
IRRELEVANT EVIDENCE OF DEFENDANT'S
BANK RECORDS DENIED DEFENDANT A FAIR
TRIAL BY SUGGESTING PROPENSITY TO STEAL
AND AN INABILITY TO REPAY HIS DEBTS.
[(Partially raised below)]
A. The Trial Court Erred by Analyzing the
Evidence under N.J.R.E. 403.
B. A Proper N.J.R.E. 404(b) Analysis
Shows that the Bank Records Evidence
Was Inadmissible.
[(Not raised below)]
i. The Bank Records Evidence
Fails the First Cofield[2] Prong
Because It Is Irrelevant and
Does Not Relate to Any
Genuinely Disputed Issue.
ii. The Evidence Fails the
Fourth Cofield Prong Because
2
State v. Cofield, 127 N.J. 328, 338 (1992).
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It Had No Probative Value but
Was Highly Prejudicial.
iii. The Absence of a
[N.J.R.E.] 404([b]) Charge
that Clearly Explained the
Permissible Use of the Prior
Bad Act Evidence
Necessitates Reversal.
POINT II
DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL AND DUE PROCESS OF LAW DUE TO
THE ERRONEOUS ADMISSION OF HEARSAY
EVIDENCE THAT HE WAS A NOTORIOUS,
VIOLENT CON[]MAN.
(Not raised below)
POINT III
DEFENDANT'S SENTENCE IS EXCESSIVE
BECAUSE THE TRIAL COURT ERRED BY
IMPOSING A SENTENCE LONGER THAN WHICH
WAS GIVEN AT HIS FIRST SENTENCING,
FAILING TO FIND APPLICABLE MITIGATING
FACTORS, FAILING TO CONDUCT AN ABILITY
TO PAY HEARING, AND MISCALCULATING
[DEFENDANT]'S JAIL CREDITS.
[(Partially raised below)]
A. Defendant's Sentence Was Illegally
Increased.
[(Not raised below)]
B. The Court Failed to Find Applicable
Mitigating Factors.
A-1901-18
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C. The Court Erred by Failing to
Determine Defendant’s Ability to Pay
Restitution.
[(Not raised below)]
D. Defendant's [JOC] Must Be Amended
to Correct a Miscalculation of His Jail
Credits.
[(Not raised below)]
II.
We turn first to defendant's arguments raised in points I and II that
challenge his convictions.
A.
In point I, defendant contends the trial judge erroneously admitted in
evidence bank records and testimony that Banco Popular closed defendant's
account due to its $7,559.23 deficit. Defendant argues "the critical question for
the jury was whether [he] intended to pay for the items" when he ultimately
returned to Sears on November 20, 2012. But defendant claims "the [bank
account] evidence was irrelevant to [his] intent to repay Sears" and "encouraged
the jury to believe [defendant] planned to steal from Sears in the same manner
he apparently had stolen from Banco Popular." We disagree.
The day before trial, the judge considered various pretrial motions filed
by the parties. Because defendant was previously convicted of passing bad
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checks, he sought "to limit admissibility of [his] prior convictions to
demonstrate knowledge that his account was closed." In that context, defendant
argued "the evidence [wa]s overly prejudicial and violate[d] [N.J.R.E.] 404 as
to character and conformity." Defendant acknowledged the account was closed;
he offered to stipulate to that fact. Defendant did not, however, move to
preclude – or otherwise argue – the reason his account was closed constituted
"bad act" evidence under N.J.R.E. 404(b).
The State opposed defendant's motion and moved to admit evidence of
defendant's prior criminal convictions for passing back checks under N.J.R.E.
404(b). The State contended those prior convictions "demonstrate[d]
defendant's knowledge that the account was closed." Following a Cofield
analysis, the judge granted the State's motion. Ultimately, the State did not
introduce evidence of defendant's prior convictions at trial. Nor did the State
seek to introduce defendant's bank records as bad act evidence under N.J.R.E.
404(b).
Midtrial, defendant moved to exclude defendant's bank records. Because
defendant stipulated that his account was closed when he presented the checks
to Sears, he argued the balance on that account was "irrelevant" and "overly
prejudicial."
A-1901-18
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Contending the stipulation was "very, very vague," the State argued it was
entitled to demonstrate "when [defendant] learned that the account was closed";
"the circumstances under which the account was closed"; that the bank closed
the account and notified defendant of its closure; and "in the month leading up
to the closure [defendant] was aware of th[e] [more than $6000 negative]
balance and did nothing to rectify it, which led to the closure." According to
the State, "in the month before the account was closed, [defendant] was
performing ATM balance inquiries on his account and saw that it was in the
severe negative territory of over $6000."
Following argument, the judge rendered a decision from the bench finding
the evidence was relevant and demonstrated defendant's knowledge at the time
he presented the checks at Sears. The judge elaborated:
Let me start with the premise that all evidence is
prejudicial to some extent. The question is the
prejudicial nature being outweighed by its [probative
value] or vice versa.
In this case, I think it does go exactly to what [the
prosecutor] was saying, whether it's the knowledge that
[defendant] ha[d] at the time that he goes [to pay for the
items] with the checks.
Yes, the stipulation tells part of the story, that is
that he knew the account was closed as of the time of
this offense. The question is beyond that, which is, the
longer he knows does go to, I think, the second charge,
A-1901-18
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not necessarily the bad check charge but the theft by
deception charge, because it's the knowledge there of
what he's doing and trying to get the goods without
paying for them.
Now, he does have a defense to that, at least
what's been presented, that he [ultimately] went back
with the intent to pay. Okay. That's a credibility issue,
among other things, because of what happened.
He was arrested before he ever had the chance,
but . . . that's a totally different issue as to whether . . .
and what he knew about the bank account being closed,
and at what level, and at what point in time, and how
far in time prior to these incidences in November of
2012.
Now, do we need to go into the fact that his
account had $100,000 on one day and, you know,
$50,000 on another day and . . . it's a business account.
It's going to jump all over the place. That's just the
nature of business.
I don't think that's really relevant, but the closing
dates, the information from the bank for that, I think
that's absolutely relevant.
For the first time on appeal, defendant contends evidence that the bank
closed his account "in April 2009 with a negative balance of $7,559.23"
suggested he was unable to repay his debts and had a "propensity to steal." As
such, defendant contends the records should have been excluded as prior bad act
evidence under N.J.R.E. 404(b). In the alternative, defendant contends the judge
should have sua sponte issued a limiting instruction, cautioning the jury "not
A-1901-18
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[to] use this evidence to decide that . . . defendant has a tendency to commit
crimes or that he. . . is a bad person." Model Jury Charges (Criminal), "Proof
of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (rev. Sept. 12, 2016).
Defendant further contends that because he stipulated that the account was
closed, it was unnecessary for the State to introduce his bank records.
Ordinarily, the admissibility of evidence during trial rests within "the
sound discretion of the trial court," State v. Willis, 225 N.J. 85, 96 (2016), and
this court will review a trial court's evidentiary ruling for abuse of discretion,
State v. Green, 236 N.J. 71, 81 (2018). "However, that deferential approach is
inappropriate when the trial court failed to properly apply Rule 404(b) to the
evidence at trial." Ibid. Nonetheless, "if the party appealing did not make its
objection to admission known to the trial court, the reviewing court will review
for plain error, only reversing if the error is 'clearly capable of producing an
unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2).
Evidence may be intrinsic to the charged crime in two ways. Pertinent to
this appeal, "evidence is intrinsic if it 'directly proves' the charged offense." Id.
at 180. Additionally, "uncharged acts performed contemporaneously with the
charged crime may be termed intrinsic if they facilitate the commission of th e
charged crime." Ibid. (internal quotation marks omitted). Evidence that is
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"intrinsic" to the charged crime is not "other crimes" evidence, and therefore not
subject to N.J.R.E. 404(b). Ibid.; State v. Sheppard, 437 N.J. Super. 171, 193
(App. Div. 2014). However, even "intrinsic evidence" is subject to N.J.R.E.
403, which permits exclusion of "relevant evidence . . . if its probative value is
substantially outweighed by the risk of . . . undue prejudice." Rose, 206 N.J. at
161.
We have considered defendant's belated argument that the bank records
were bad act evidence under N.J.R.E. 404(b), pursuant to the plain error
standard, R. 2:10-2, and conclude it lacks sufficient merit to warrant extended
discussion in a written opinion, R. 2:11-3(e)(2). We add only the following
comments.
As defendant acknowledges in his merits brief, the prosecutor did "not
explicitly argue[]" that the bank records "demonstrate[d] why [defendant]
committed the offenses[;] . . . had previously stolen from the bank[;] was poor[;]
and had a general need of money." Rather, the prosecutor limited his comments
in summation, as follows:
[Defendant] conducted three transactions totaling
nearly $3000. During each one of those transactions,
he was checked out by cashier Shequelle Harris.
During each of those transactions, he passed checks to
Shequelle Harris.
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Those checks were drawn on a Banco Popular
account that was closed over three years before he set
foot in that store. That account, at the time it was
closed, had a negative balance of $7,559.[2]3. That
account was . . . defendant's account and . . . defendant
knew at the time he passed the checks at Sears that his
account was closed.
Consistent with the model jury charge for bad checks, Model Jury Charges
(Criminal), "Bad Checks" (rev. May 12, 2008), the judge instructed the jury, in
pertinent part:
In order to obtain a conviction [for bad checks],
the State must prove each of the following elements
beyond a reasonable doubt: [(1)] that the defendant
knowingly issued or passed a check for the payment of
money, and (2) that the defendant knew at the time he
issued or passed the check that it would not be honored
by the drawee.
Here, the bank records directly proved defendant passed each check,
knowing they would not be honored by Banco Popular and, as such, that
evidence was not subject to N.J.R.E. 404(b). Rose, 206 N.J. at 180. The State
introduced the records for that purpose only. As the trial judge correctly
concluded, the probative value of the records substantially outweighed their
prejudice under N.J.R.E. 403. We therefore discern no error, let alone plain
error, in the judge's failure to analyze admission of those records under N.J.R.E.
404(b).
A-1901-18
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Moreover, we are not persuaded by defendant's repackaged contention
that the bank records were cumulative evidence in view of the stipulation that
the account was closed. We have made it clear that "in a criminal case, if facts
are stipulated, the judge should not tell the jurors that they are 'bound' by such
stipulated facts, if to do so would result in a directed verdict of any element of
an offense charged." State v. Wesner, 372 N.J. Super. 489, 491 (App. Div.
2004).
Here, pursuant to the model jury charge for stipulations, the judge
instructed the jury: "As with all evidence, an undisputed fact can be accepted
or rejected by the jury in reaching a verdict." See Model Jury Charges
(Criminal), "Stipulations" (approved Feb. 14, 2005). Accordingly, the jury was
not bound by the stipulation and the bank records therefore were not cumulative
evidence.
B.
Little need be said regarding the assertions raised in defendant's point II.
Defendant now claims the trial judge erroneously admitted Sarno's statements
through Harris that defendant was "a very violent man" and "a con artist" who
"had done this before." Defendant argues those statements were inadmissible as
A-1901-18
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hearsay statements under N.J.R.E. 801 and improperly introduced ev idence of
his prior convictions. See N.J.R.E. 404(b).
Initially, we recognize defendant elicited the challenged remarks on
redirect examination of Harris at his first trial when he was uncounseled. But
defendant – through counsel – moved to admit Harris's trial testimony with
redactions at his present trial. During the pretrial hearing the judge and the
parties engaged in lengthy colloquy regarding the admission of Harris's
testimony, and defense counsel raised several objections to the State's propos ed
redactions. However, defense counsel neither objected to the inclusion of the
belatedly challenged testimony nor objected to its omission when Harris's
testimony was read to the jury. We therefore reject defendant's argument that
counsel "simply . . . overlooked" Sarno's remarks.
When viewed through the prism of the plain error standard, we discern
Sarno's brief comments, introduced at the end of Harris's testimony that spanned
twenty-one transcript pages, was not "clearly capable of producing an unjust
result." R. 2:10-2. Because defendant never objected to that admission to
Sarno's remarks, we assume defendant agreed they were not harmful. See State
v. Nelson, 173 N.J. 417, 471 (2002) (recognizing it is "fair to infer from the
A-1901-18
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failure to object below that in the context of the trial the error was actually of
no moment") (quoting State v. Macon, 57 N.J. 325, 333 (1971)).
III.
Lastly, we address defendant's sentencing arguments. Defendant contends
the trial court erred by improperly: (1) imposing a greater sentence than was
ordered following his first trial; (2) evaluating mitigating factors; and (3)
ordering restitution without an ability-to-pay hearing. Defendant also contends
his jail credits were miscalculated, thereby requiring entry of an amended JOC.
Our analysis of these arguments is framed by well-settled principles.
Generally, we review a sentencing court's decision "in accordance with a
deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014); see also State v.
Trindad, 241 N.J. 425, 453 (2020). We do not "substitute [our] judgment" for
that of the sentencing court. State v. Case, 220 N.J. 49, 65 (2014). That
deference, however, "applies only if the trial judge follows the Code and the
basic precepts that channel sentencing discretion." Ibid. Ordinarily, we will not
disturb a sentence that is not manifestly excessive or unduly punitive, does not
constitute an abuse of discretion, and does not shock the judicial conscience.
State v. O'Donnell, 117 N.J. 210, 215-16 (1989).
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At his first trial, defendant was sentenced by another judge to an aggregate
prison term of five years. Van Ness, 450 N.J. Super. at 491. After his second
trial, the trial judge sentenced defendant to the same aggregate prison term but
imposed a thirty-month parole disqualifier. Pursuant to N.J.S.A. 2C:43-6(b),
the judge found three aggravating factors "substantially outweighed" one
mitigating factor. In reaching his decision, the judge cited defendant's "pattern
of theft by passing bad checks," including a prior conviction in this State for
theft, and a Florida conviction for a "theft by deception type of charge."
Relevant here, the Florida theft offense occurred after defendant committed the
present offenses. The judge also referenced defendant's subsequent conviction
in Pennsylvania "which may or may not" have been for a municipal theft-related
offense.
On appeal, defendant argues his sentence was "illegally increased"
because he had "beg[un] serving a legal sentence" for his convictions from the
first trial. Defendant's argument is misplaced.
We have recognized a court may not impose a "substantially harsher
sentence" on remand if the increased sentence is not required by law or is not
supported by "any evidence of intervening conduct or prior oversight to justify
the new sentence." State v. Heisler, 192 N.J. Super. 586, 592-93 (App. Div.
A-1901-18
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1984); see also State v. Pindale, 279 N.J. Super. 123, 128-30 (App. Div. 1995)
(holding in resentencing a defendant following remand, trial courts must
overcome a "presumption of vindictiveness" when imposing a greater sentence
than ordered before by pointing to "specific reasons justifying the increase").
To hold otherwise would effectively penalize a defendant for exercising his
constitutional right to challenge his sentence. Heisler, 192 N.J. Super. at 593.
Consequently, "whenever a judge imposes a more severe sentence . . .
after a new trial," the judge must provide reasons for doing so, which "must be
based upon objective information concerning identifiable conduct on the part of
the defendant occurring after the time of the original sentencing proceeding."
Pindale, 279 N.J. Super. at 129 (quoting North Carolina v. Pearce, 395 U.S. 711,
726 (1969)). Therefore, "if the original sentence is increased, the sentencing
authority must affirmatively identify the relevant conduct or events that
occurred after the original sentencing proceeding in order to overcom e any
presumption of vindictiveness." State v. Rodriguez, 97 N.J. 263, 276 (1984).
Where, as here, the judge who sentenced defendant after the second trial is not
the same judge who sentenced him following the first trial, any presumption of
vindictiveness is virtually eliminated. See Texas v. McCullough, 475 U.S. 134,
139 (1986) ("[Unlike] the judge who has been reversed, the trial judge here had
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no motivation to engage in self-vindication.") (internal quotation marks
omitted).
In the present matter, the trial judge expressly articulated the intervening
conduct that justified imposition of a longer sentence than that determined by
the initial judge. After defendant was convicted at his first trial, defendant was
convicted in two other States for theft-related offenses, at least one of which
was indictable. On resentencing, the court must consider defendant's "post-
offense conduct, rehabilitative or otherwise," in its sentencing decision. State
v. Jaffe, 220 N.J. 114, 124 (2014). The judge's decision here was supported by
defendant's post-offense conduct.
We turn to defendant's argument that the trial judge failed to find
applicable mitigating factors, i.e., factor two: "The defendant did not
contemplate that [his] conduct would cause or threaten serious harm," N.J.S.A.
2C:44-1(b)(2); and factor four: "There were substantial grounds tending to
excuse or justify the defendant's conduct, though failing to establish a defense,"
N.J.S.A. 2C:44-1(b)(4). Defendant contends that because the court found
mitigating factor one: "The defendant's conduct neither caused nor threatened
serious harm," N.J.S.A. 2C:44-1(b)(4), the "same logic" applies to mitigating
factor two. Defendant also contends he stole from Sears because he was
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"desperate and looking for charity and compassion" in the aftermath of
Hurricane Sandy and, as such, the judge should have found mitigating factor
four.
In sentencing, the trial court "first must identify any relevant aggravating
and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the
case." Case, 220 N.J. at 64. The court must then "determine which factors are
supported by a preponderance of [the] evidence, balance the relevant factors,
and explain how it arrives at the appropriate sentence." O'Donnell, 117 N.J. at
215. We are "bound to affirm a sentence, even if [we] would have arrived at a
different result, as long as the trial court properly identifie[d] and balance[d]
aggravating and mitigating factors that [were] supported by competent credible
evidence in the record." Ibid. "Although there is more discretion involved in
identifying mitigating factors than in addressing aggravating factors, those
mitigating factors that are suggested in the record, or are called to the court's
attention, ordinarily should be considered and either embraced or rejected on the
record." State v. Blackmon, 202 N.J. 283, 297 (2010); see also Case, 220 N.J.
at 64.
At sentencing, the trial court found aggravating factors three (the risk
defendant will commit another offense), six (defendant's prior record), and nine
A-1901-18
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(the need to deter), N.J.S.A. 2C:44-1(a) (3), (6), and (9). The judge then
addressed the mitigating factors:
Originally when I looked at this, I did not find
that there were mitigating factors; however, [defense
counsel] has convinced me today that at least mitigating
factor one applies. [D]efendant's conduct neither
caused nor threatened serious harm. The total amount
of the theft in this instance was . . . around $3000.
....
It was not serious harm to a major corporation like
Sears. On the other hand, pretty soon, in the words of
Everett Dirksen, a dollar here, dollar there, pretty soon
you're talking serious money. And if every Sears store
had these types of thefts going on, they'd be in serious
trouble.
The trial judge did not, however, address defendant's argument as to
mitigating factors two and four. 3 Accordingly, we vacate defendant's sentence
and remand for consideration of mitigating factors two and four, and express
findings supporting or rejecting both factors. We suggest no opinion as to the
judge's ultimate findings or resultant sentence.
3
At sentencing, defendant urged mitigating factors five (whether the victim's
conduct induced or facilitated the crime), N.J.S.A. 2C:44-1(b)(5), and eight
(defendant's conduct was the result of circumstances unlikely to recur), N.J.S.A.
2C:44-1(b)(8). On appeal, defendant does not assert the judge failed to find
those factors. An issue not briefed is deemed waived. See Gormley v. Wood-
El, 218 N.J. 72, 95 n.8 (2014); see also Pressler & Verniero, Current N.J. Court
Rules, cmt. 5 on R. 2:6-2 (2021).
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We also part company with the trial judge's restitution award in the
absence of an ability-to-pay assessment. In doing so, we recognize defendant
neither requested an ability-to-pay hearing before the trial judge nor otherwise
contested the imposition of restitution. Indeed, defendant merely asserted that
the $2,749.78 total restitution amount should be apportioned per count. Notably,
the judge gave defendant credit for restitution he had paid in connection with
his initial convictions.
Nonetheless, before a court imposes restitution, it must find "[t]he
defendant is able to pay or, given a fair opportunity, will be able to pay
restitution." N.J.S.A. 2C:44-2(b), State v. Ferguson, 273 N.J. Super. 486, 499
(App. Div. 1994). A hearing is generally required unless there is no dispute as
to the amount necessary to make the victim whole or – as is the case here – the
defendant's ability to pay. State v. McLaughlin, 310 N.J. Super. 242, 263-65
(App. Div. 1998).
As the State correctly notes, the initial sentencing judge expressly found
defendant had the ability to pay restitution after "he is released from prison. He
is fifty-three years old. He appears to be a young man, certainly under today's
actuary standards. There doesn't appear to be any reason why he couldn't go out
and get legitimate employment and pay this money back." At the time of
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resentencing, however, defendant was fifty-seven years old and incarcerated.
And the trial judge made no findings about his ability to pay on the day of
resentencing. Accord Jaffe, 220 N.J. at 124.
We agree this lapse requires the award be vacated and the matter remanded
for a determination of whether defendant can satisfy the order. See State v.
Pessolano, 343 N.J. Super. 464, 479 (App. Div. 2001) (remanding for
reconsideration of the restitution award where the trial judge "held no hearing
and made no comments during sentencing about defendant's financial status or
ability to pay").
The last matter for consideration concerns the calculation of jail credits.
Defendant claims the JOC must be amended to reflect nineteen days for time
served between June 7, 2013 and June 25, 2013, as reflected on his original JOC
and awarded by the first sentencing judge. The State counters that defendant's
presentence report indicates he was incarcerated during that timeframe as a
fugitive from Pennsylvania for fraud offenses committed in that State.
Although the trial judge detailed defendant's jail credits at the conclusion
of sentencing, the record fails to reveal the timeframe in question. Accordingly,
on remand, the judge shall determine whether defendant is entitled to jail credits
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for the period spanning June 7, 2013 through June 25, 2013, and file an amended
JOC as necessary.
Affirmed, and remanded for resentencing. We do not retain jurisdiction.
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