STATE OF NEW JERSEY VS. B.J. (13-07-2084, CAMDEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-0624-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
B.J.,
Defendant-Appellant.
_____________________________
Submitted May 16, 2017 – Decided July 25, 2017
Before Judges Fisher, Vernoia and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 13-07-2084.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Linda A. Shashoua,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals his convictions and aggregate sixty-year
custodial sentence following a jury trial for attempted murder,
endangering the welfare of a child, terroristic threats, aggravated
assault and weapons charges. Based on our review of the record in
light of the applicable law, we affirm defendant's convictions and
sentence, vacate the court's order requiring restitution, and remand
for a restitution hearing.
I.
The criminal charges against defendant arise out of a January
24, 2013 incident during which he shot his eleven-year-old daughter
Y.P. in the face with a handgun, and threatened and assaulted
Y.P.'s mother S.P. (Sally),1 and her mother's boyfriend W.M.
(Warren). Defendant was arrested shortly after leaving the scene.
Defendant was charged in a fourteen-count indictment with:
first-degree attempted murder of Y.P., N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3(a) (count one); second-degree endangering the
welfare of a child, Y.P., N.J.S.A. 2C:24-4(a) (count two); first-
degree attempted murder of Warren, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:11-3(a) (count three); third-degree terroristic threats against
Sally, N.J.S.A. 2C:12-3(a), (b) (count four); third-degree
terroristic threats against Y.P., N.J.S.A. 2C:12-3(a), (b) (count
five); third-degree terroristic threats against Warren, N.J.S.A.
2C:12-3(a), (b) (count six); fourth-degree aggravated assault
1
We employ initials and pseudonyms to protect the privacy of the
minor child and other victims in this matter.
2 A-0624-15T3
against Y.P. by pointing a firearm at her, N.J.S.A. 2C:12-1(b)(4)
(count seven); fourth-degree aggravated assault against Warren by
pointing a firearm at him, N.J.S.A. 2C:12-1(b)(4) (count eight);
second-degree possession of a handgun for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count nine); second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b) (count ten); third-
degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(b) (count eleven);
fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count
twelve); third-degree unlawful possession of a controlled
dangerous substance, N.J.S.A. 2C:35-10(a) (count thirteen);
second-degree possession of a weapon by a certain person not to
have weapons, N.J.S.A. 2C:39-7(b) (count fourteen).
Prior to defendant's jury trial, the court dismissed count
thirteen. Defendant proceeded to trial on the first twelve counts
of the indictment and after the jury returned its verdict,
conducted a separate trial before the same jury on the certain
persons charge contained in count fourteen.2
The evidence presented during the trials showed that Y.P.
lived with Sally, Warren, her two sisters and an uncle, B.M.
(Barry). Defendant, Y.P.'s biological father, visited Y.P. about
once each month at her home.
2
See State v. Ragland, 105 N.J. 189, 193-94 (1986).
3 A-0624-15T3
During a January 24, 2013 visit, Warren let defendant in the
home and defendant sat on the living room stairs. Warren was also
in the living room seated with Y.P. on a sofa. Sally sat nearby.
After a few minutes, defendant pulled a handgun out of his
pants and Y.P. reacted by saying, "he's got a gun, he's got a
gun." Y.P. screamed at defendant, telling him to leave the house
with the gun. Sally asked if the gun was real and defendant said
it was not. Defendant told Y.P. to "shut up," but she continued
screaming, saying, "Get the gun out of my mommy['s] house," and
"you don't love me, you don't love my mother, you don't respect
my mother to bring that gun into her house." Sally told defendant
to leave the house with the gun, but defendant repeatedly stated,
"It's a fake gun." He said, "Allah Akbar, we're all gonna die, we
must die." Y.P. repeatedly stated to Warren, "Daddy, I'm scared."
Defendant moved toward the door, but then turned around and
walked directly toward Y.P. He told her to "shut up," and shot her
in the face. Sally and Warren fell back onto the sofa. Defendant
stood over Warren and pointed the gun at him. Warren pled for
defendant not to shoot him, and believed defendant pulled the
gun's trigger but it did not fire.
Warren then charged at defendant in an effort to get the gun.
As Warren and defendant wrestled over the gun, defendant repeatedly
screamed, "What did I do? It wasn't real." Warren took the gun
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from defendant and realized there were bullets jammed inside of
it. He cleared the jam and replaced the gun's magazine. Sally
attended to Y.P. and saw her face bleeding. Sally screamed, "[H]e
shot my daughter. . . . My baby's dead," as defendant repeated,
"Allah Akbar, we all must die."
Defendant ran from the house as Warren shot at him with the
gun. Warren pursued defendant and continued to fire gunshots as
defendant ran across the street toward an apartment complex.
Police officers arrived. Sally told the officers where
defendant went and they located defendant walking away with blood
on his shirt. The officers approached defendant, but he continued
walking and disobeyed the officers' commands to stop and surrender.
The officers tackled defendant and he kicked and punched them in
an attempt to get away. The officers subdued defendant and placed
him under arrest. The officers returned to Y.P.'s home, where
Warren turned over defendant's handgun.
Y.P. was transported to the hospital. It was determined a
bullet entered her left cheek, severed her spinal cord, and lodged
in her left chest, causing a lung injury that required she be
placed on a ventilator. She spent four months in the hospital,
underwent multiple surgeries, and was discharged to a spinal cord
injury center for rehabilitation. She is paralyzed below the waist,
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confined to a wheelchair, and has diminished sensations in her
arms and hands.
Following the presentation of the evidence, the jury found
defendant guilty of first-degree attempted murder of Y.P. (count
one), second-degree endangering the welfare of a child (count
two), two counts of third-degree terroristic threats (counts five
and six), two counts of fourth-degree aggravated assault (counts
seven and eight), second-degree possession of a handgun for an
unlawful purpose (count nine), second-degree unlawful possession
of a handgun (count ten), and, following a second trial before the
same jury, second-degree possession of a weapon by certain persons
not to have weapons (count fourteen). The jury also found defendant
guilty of lesser-included offenses of harassment, N.J.S.A. 2C:33-
4, under count four, and resisting arrest, N.J.S.A. 2C:29-2(a)(1),
under counts eleven and twelve. Defendant was found not guilty of
the attempted murder of Warren alleged in count three.
The court sentenced defendant to an extended term fifty-year
sentence on the first-degree attempted murder charge under
N.J.S.A. 2C:43-7, subject to the requirements of the No Early
Release Act, N.J.S.A. 2C:43-7.2. The court imposed a consecutive
ten-year sentence with a five-year period of parole ineligibility
on defendant's conviction under count fourteen for second-degree
possession of a weapon by certain persons not to have weapons. The
6 A-0624-15T3
sentences imposed on the remaining counts were made concurrent to
the attempted murder sentence. This appeal followed.
On appeal, defendant makes the following arguments:
POINT ONE
THE TRIAL COURT DENIED [DEFENDANT'S] RIGHT TO
DUE PROCESS AND A FAIR TRIAL WHEN IT RULED
THAT HE HAD WAIVED HIS RIGHT TO TESTIFY. (Not
Raised Below).
POINT TWO
THE TRIAL COURT ERRED IN FAILING TO ORDER A
COMPETENCY EVALUATION BECAUSE THE RECORD
SUPPORTS A BONA FIDE DOUBT AS TO [DEFENDANT'S]
COMPETENCY TO STAND TRIAL. (Not Raised Below).
POINT THREE
THE TRIAL COURT'S ERRONEOUS JURY CHARGES ON
IDENTIFICATION AND FLIGHT DEPRIVED
[DEFENDANT] OF HIS RIGHT TO DUE PROCESS AND A
FAIR TRIAL. (U.S. Const. [amends. V, VI, and
XIV]; N.J. Const. [art. I, ¶¶ 1, 9, and 10).]
(Not Raised Below).
1. The trial court deprived
[defendant] of due process and a
fair trial when it failed to
instruct the jury properly on
identification when his sole
defense was misidentification.
2. The trial court deprived
[defendant] of due process and a
fair trial when it failed to charge
the jury properly on flight.
. . . .
7 A-0624-15T3
POINT FOUR
THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING A MANIFESTLY EXCESSIVE SENTENCE AND
FAILING TO HOLD A RESTITUTION HEARING.
A. The court erred by imposing the
maximum sentence.
B. The court erred by failing to
hold a restitution hearing.
II.
Defendant's arguments concerning the court's alleged trial
errors are raised for the first time on appeal. We therefore
consider the arguments under the plain error standard and will not
reverse unless the errors are "clearly capable of producing an
unjust result." R. 2:10-2. We reverse only where there is a
possibility of an unjust result "sufficient to raise a reasonable
doubt as to whether the error led the jury to a result it otherwise
might not have reached." State v. G.V., 162 N.J. 252, 280 (2000)
(quoting State v. G.S., 145 N.J. 460, 473 (1996)). We find no such
errors here.
We first consider defendant's argument that the court was
obligated to sua sponte order a competency hearing and determine
his fitness to proceed during the trial. He claims that statements
he made to the court and his trial counsel's purported inability
to communicate with him raised a bona fide issue about his
8 A-0624-15T3
competence, and the court erred by failing to order a competency
hearing.
"The court decides whether a competency hearing is required;
there are 'no fixed or immutable signs which invariably indicate
the need for further inquiry to determine fitness to proceed.'"
State v. Gorthy, 226 N.J. 516, 530 (2016) (quoting Drope v.
Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d 103,
118 (1975)). "Where evidence raises a bona fide doubt as to a
defendant's competence, a competency hearing must be held." State
v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007).
"However, absent any indication of incapacity to stand trial,
the court is not bound to interrupt a trial." State v. Spivey,
65 N.J. 21, 36 (1974). "'Mere suggestion' of incapacity is not
sufficient." Ibid. "No court would be bound to stop, or justified
in arresting the progress of a trial by a mere suggestion of, but
in the absence of any substantial evidence of the existence of a
degree of mental disorder which would unfit the defendant from
conducting his cause or instructing his counsel." Id. at 36-37
(quoting State v. Peacock, 50 N.J.L. 34, 36 (Sup. Ct. 1887), rev'd
on other grounds, 50 N.J.L. 653 (E. & A. 1888)).
Although the court may sua sponte order a competency hearing,
"the standard of review for failure to initiate the inquiry is a
strict one." Id. at 37. The court's failure to raise the issue
9 A-0624-15T3
"will not be reviewed on appeal, unless it clearly and convincingly
appears that the defendant was incapable of standing trial." State
v. Lucas, 30 N.J. 37, 73-74 (1959). To satisfy the standard, there
must be a "'bona fide doubt' as to defendant's competence to stand
trial." Spivey, supra, 65 N.J. at 37 (quoting Pate v. Robinson,
383 U.S. 375, 385, 86 S. Ct. 836, 842, 15 L. Ed. 2d 815, 822
(1966)). "It is to be ordinarily expected that defense counsel,
who is in a far better position than the trial judge to assay the
salient facts concerning the defendant's ability to stand trial
and assist in his own defense, would originate the request that
such an inquiry be conducted." Ibid. (quoting Lucas, supra, 30
N.J. at 73-74).
The standard for determining competency to stand trial is
"whether [the defendant] has sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding[,] and whether he has a rational as well as factual
understanding of the proceedings against him." Dusky v. United
States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824,
825 (1960). In New Jersey, competency requires that a defendant
"appreciate his presence in relation to time, place and things,"
N.J.S.A. 2C:4-4(b)(1), and understand his presence in a courtroom
facing criminal charges; the role of the judge, prosecutor, and
defense attorney; his rights and the consequences of waiving them;
10 A-0624-15T3
and his ability to participate in his own defense, N.J.S.A. 2C:4-
4(b)(2). See Gorthy, supra, 226 N.J. at 531-32.
Based on our careful review of the trial record, we are not
persuaded defendant's statements to the court raised a bona fide
doubt about his competency. To be sure, defendant declared he was
"not mentally fit," needed to "see a psychiatrist," and did not
understand what was going on. But when viewed in context, the
statements did not clearly and convincingly create a bona fide
doubt as to defendant's competence under N.J.S.A. 2C:4-4(b)(1)
requiring a sua sponte order for a competency hearing.
Despite his self-serving and conclusory assertions to the
contrary, defendant demonstrated an understanding of the
proceedings throughout the entirety of the trial. The record shows
that during his limited direct interactions with the court,
defendant referred to the judge as "Your Honor," and responded to
the judge's inquiry concerning any pre-trial issues by asking if
he could make a statement "for the record." When permission was
granted, defendant challenged the subject matter jurisdiction of
the court, declared he was appearing "without prejudice, and
without [waiving] any rights, remedy, statutorial [sic] or
procedural," and said he did not "want to participate" in the
proceeding. When defendant was questioned by the court concerning
his election not to testify, he made the self-serving statement
11 A-0624-15T3
that he did not understand and was not "fit for trial," but he
also declared the he did not want to "do nothing."
Beyond his conclusory assertions, the record is devoid of
evidence that any purported self-proclaimed mental condition or
lack of understanding affected his ability to understand his
surroundings, the nature of the proceedings, or his ability to
participate in his own defense. Moreover, defendant's counsel, who
was in the best position to assess defendant's competence, never
raised the issue despite working directly with defendant,
conferring with him before and during the trial, and consulting
with him about his election not to testify. We find defendant's
unsupported and self-serving declarations during the trial did not
give rise to a bona fide doubt as to his competency to stand trial,
and the court did not err by failing to sua sponte order a
competency hearing.
III.
Defendant also contends for the first time on appeal that the
court erred by finding he knew he had the right to testify at
trial and waived his right to testify. He argues that although the
court informed him on two separate occasions about his decision
whether or not to testify, the court committed plain error by
determining he waived his right to testify. We find the argument
to be without sufficient merit to warrant a discussion in a written
12 A-0624-15T3
opinion, R. 2:11-3(e)(2), other than to offer the following
comments.
The decision to testify in a criminal case belongs to the
defendant, and it "is an important strategical choice, [to be]
made by defendant in consultation with counsel." State v. Savage,
120 N.J. 594, 630-31 (1990). When a defendant is represented by
counsel, the court is not required to inform defendant of his
right to testify or explain the consequences of the choice, and
defendant's waiver of the right to testify "need not be on the
record to withstand appellate scrutiny." State v. Buonadonna, 122
N.J. 22, 36 (1991).
Here, the record shows that although the court was not
obligated to do so, on two occasions it explained to defendant
that he had the right to testify at trial or to remain silent.
Defendant's counsel was afforded ample time during the course of
the trial to discuss defendant's decision and confirmed he
conferred with defendant about his options. When the court asked
defendant about his decision, defendant repeated his conclusory
assertion that he was not fit for trial and said he did not "want
to proceed with nothing." Counsel explained he discussed the issue
with defendant and gave defendant "every opportunity . . . to
think about it." Defendant, however, refused to respond to the
court's repeated questioning about his decision, and the judge
13 A-0624-15T3
indicated that he would accept the refusal to respond as an
expression of a decision not to testify. Neither defendant nor his
counsel objected to the court's interpretation of defendant's
silence.
Moreover, the court's acceptance of defendant's silence as
an election not to testify was not dispositive and did not preclude
defendant from testifying if he chose to do so. The court did not
bar defendant from testifying. Following the court's final
colloquy with defendant and his counsel concerning defendant's
decision about testifying, defendant had the opportunity to call
witnesses, including himself, in support of his defense. Instead,
defendant rested without calling any witnesses. Under such
circumstances, we cannot conclude that the court's colloquy with
defendant concerning his decision whether or not to testify, and
its acceptance of defendant's silence as an election not to
testify, was clearly capable of producing an unjust result.
IV.
Defendant next argues the court erred by failing to charge
the jury on identification and by failing to provide a complete
jury instruction on flight. Defendant acknowledges he did not
request the omitted charges or object to the omission of them, but
contends the alleged errors constitute plain error warranting
reversal. We are not persuaded.
14 A-0624-15T3
Where a party does not object to a jury charge, "there is a
presumption that the charge was not error and was unlikely to
prejudice the defendant's case." State v. Singleton, 211 N.J. 157,
182 (2012). Where there is no objection to a jury charge and the
charge is challenged on appeal, we review the jury instructions
for plain error and determine if the alleged error is "clearly
capable of producing an unjust result." State v. Montalvo, ___
N.J. ___, ___ (June 8, 2017) (slip op. at 31) (quoting R. 2:10-
2); accord Singleton, supra, 211 N.J. at 182. Establishing "plain
error requires demonstration of 'legal impropriety in the charge
prejudicially affecting the substantial rights of the defendant
and sufficiently grievous to justify notice by the reviewing court
and to convince the court that of itself the error possessed a
clear capacity to bring about an unjust result.'" Montalvo, supra,
slip op. at 31 (quoting State v. Chapland, 187 N.J. 275, 289
(2006)).
We reject defendant's contention that the court's failure to
provide an identification charge constitutes plain error. The
model jury instruction on identification should generally be given
in every case where identification is a legitimate issue. State
v. Cotto, 182 N.J. 316, 325-26 (2005). "When identification is a
'key issue,' the trial court must instruct the jury on
identification, even if a defendant does not make that request."
15 A-0624-15T3
Id. at 325 (quoting State v. Green, 86 N.J. 281, 291 (1981)).
Identification is a "key issue when '[i]t [is] the major . . .
thrust of the defense,' particularly in cases where the State
relies on a single victim-eyewitness." Ibid. (quoting Green,
supra, 86 N.J. at 291); see, e.g., State v. Frey, 194 N.J. Super.
326, 329 (App. Div. 1984) ("The absence of any eyewitness other
than the victim and defendant's denial of guilt, made it essential
for the court to instruct the jury on identification.").
Here, identification was not a key issue at trial because
defendant's identity was not disputed. Defendant was identified
at trial by his daughter Y.P., who testified that defendant held
a gun, told her to "shut up," and shot her in the face. Defendant
was also identified by Sally, Warren and Barry, each of whom knew
defendant for long periods prior to the incident.
Defendant argues identification was a key issue because it
is unclear whether Y.P. was injured by a gunshot fired by defendant
or one fired by Warren following his tussle with defendant for the
handgun. But that is not an identification issue; it is a causation
issue. Where, as here, identification was not an issue at all, the
court did not err by failing to sua sponte give an identification
charge. See State v. Gaines, 377 N.J. Super. 612, 625-27 (App.
Div.) (finding failure to provide identification charge is not
plain error where identification was not a key issue and there was
16 A-0624-15T3
overwhelming identification evidence), certif. denied, 185 N.J.
264 (2005); cf. State v. Davis, 363 N.J. Super. 556, 561 (App.
Div. 2003) (holding an identification instruction was required
where a misidentification defense "although thin, was not
specious").
Moreover, the jury was otherwise clearly instructed that the
State must prove beyond a reasonable doubt defendant committed the
crimes for which he was charged. Under all of the circumstances
presented, we are not convinced the court's failure to sua sponte
give an identification charge had the clear capacity to bring
about an unjust result. Montalvo, supra, slip op. at 31.
V.
Defendant also contends the court erred by providing an
incomplete charge on flight. The model jury charge on flight
requires that where the defense has not denied that the defendant
departed the scene "but has suggested an explanation" for the
defendant's departure, the court shall advise the jury of the
explanation. The court must also instruct the jury that if it
determines the explanation is credible, an inference of the
defendant's consciousness of guilt should not be drawn by the
departure. See Model Jury Charge (Criminal), "Flight" (May 2010).
Defendant argues there was evidence showing he left the scene
because Warren was shooting at him, and the jury should have been
17 A-0624-15T3
advised that if it accepted defendant's reason for his departure,
it should not infer his departure showed consciousness of guilt.
We are not convinced it was plain error for the court to omit that
portion of the flight charge. We presume the omission of the
instruction was "unlikely to prejudice the defendant's case"
because defendant did not request it or object to the instructions
that did not include it. Singleton, supra, 211 N.J. at 182.
Moreover, the jury was instructed it could only consider
defendant's flight as evidence of consciousness of guilt if it
determined "defendant's purpose in leaving was to evade accusation
or arrest for the offense[s] charged in the indictment." Model
Jury Charge (Criminal), "Flight" (May 2010). The jury instruction
given by the court provided "sufficient guidance" to the jury and
did not create any "risk that the . . . ultimate determination of
guilt or innocence [was] based on speculation, misunderstanding,
or confusion." State v. Olivio, 123 N.J. 550, 567-68 (1991). We
presume the jury followed the court's instructions, State v. Burns,
192 N.J. 312, 335 (2007), and are satisfied the jury would not
have inferred consciousness of guilt if it also determined
defendant departed because he was being shot at by Warren. We
therefore discern no basis to conclude the omission of the
instruction was clearly capable of producing an unjust result. R.
2:10-2.
18 A-0624-15T3
VI.
Defendant last argues his sixty-year aggregate sentence is
excessive and that the court erred by ordering that he make
restitution without first conducting a restitution hearing. He
claims the court erred by failing to find the following mitigating
factors: two, defendant did not contemplate that his conduct would
cause harm, N.J.S.A. 2C:44-1(b)(2); four, there were substantial
ground tending to excuse his conduct, though failing to establish
a defense, N.J.S.A. 2C:44-1(b)(4); and eight, defendant's conduct
was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-
1(b)(8). He also contends the court placed too much weight on
aggravating factor nine, the need to deter the defendant and others
from violating the law, N.J.S.A. 2C:44-1(a)(9). Defendant claims
the court's failure to find the mitigating factors and its error
in weighing aggravating factor nine resulted in an excessive
sentence.
We review a "trial court's 'sentencing determination under a
deferential standard of review.'" State v. Grate, 220 N.J. 317,
337 (2014) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)).
We may "not substitute [our] judgment for the judgment of the
sentencing court." Lawless, supra, 214 N.J. at 606. We must affirm
a sentence if: (1) the trial court followed the sentencing
guidelines; (2) its findings of fact and application of aggravating
19 A-0624-15T3
and mitigating factors were based on competent, credible evidence
in the record; and (3) the application of the law to the facts
does not "shock[] the judicial conscience." State v. Bolvito, 217
N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)); see also State v. Case, 220 N.J. 49, 65 (2014).
A sentencing court must find mitigating factors that are
supported by the record, and should accord them such weight as it
deems appropriate. Grate, supra, 220 N.J. at 338; Case, supra, 220
N.J. at 64-65. Defendant contends the court erred by failing to
find mitigating factors two, four and eight, but did not request
that the court find those factors at the time of sentencing. See
State v. Blackmon, 202 N.J. 283, 297 (2010) ("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.") (emphasis added); State v. Bieniek, 200
N.J. 601, 609 (2010) (encouraging trial courts to address each
mitigating factor raised by defendants).
Nevertheless, the court considered each of the mitigating
factors and determined none were supported by the record. And the
record supports the court's determination. Defendant's assertion
the court should have found mitigating factor two is undermined
20 A-0624-15T3
by the evidence that he carried a handgun, used it to shoot his
daughter, and caused her debilitating injuries. Defendant's
claimed entitlement to findings of mitigating factors four and
eight is based on what he alleges a mental health evaluation,
which was never requested or performed, might have shown. Thus,
there was no evidence before the court supporting a finding of
mitigating factors two, four and eight.
We also reject defendant's contention the court erred in its
weighing of aggravating factor nine. Defendant's assertion that
aggravating factor nine is of "limited penal significance" lacks
merit. Our Supreme Court has noted that the need for deterrence
is one of the most important factors in sentencing. State v.
Fuentes, 217 N.J. 57, 78-79 (2014). In Fuentes, the Court stated
that in considering aggravating factor nine, a sentencing court
must make a qualitative assessment of the defendant's risk of
recidivism in light of the defendant's history, including but not
limited to the defendant's criminal history. Id. at 79. Here,
the court fulfilled this mandate by considering defendant's
personal history and extensive juvenile adjudications and adult
criminal history in determining the need for deterrence.
We are not persuaded by defendant's argument that his sentence
is excessive. To be sure, the court imposed a long sentence, but
defendant was subject to a mandatory extended term sentence of
21 A-0624-15T3
between twenty years and life in prison, N.J.S.A. 2C:43-7. The
record shows the court carefully considered defendant's prior
criminal record and the circumstances of the offenses for which
he was convicted, correctly found and weighed the aggravating and
mitigating factors, and imposed a sentence in accordance with the
applicable legal principles that does not shock our judicial
conscience. Bolvito, supra, 217 N.J. at 228.
We are, however, persuaded the court erred by ordering that
defendant pay $971.29 in restitution. To properly determine the
amount of restitution, a sentencing court must "take into account
all financial resources of the defendant, including the
defendant's likely future earnings, and . . . set the amount
. . . that is consistent with the defendant's ability to pay."
N.J.S.A. 2C:44-2(c)(2). Where necessary, the court must conduct a
hearing to determine "the amount the defendant can pay and the
time within which he can reasonably do so." State v. Topping, 248
N.J. Super. 86, 90 (App. Div. 1991) (quoting State v. Paladino,
203 N.J. Super. 537, 547 (1985)). The record lacks any showing the
court considered either defendant's financial resources or ability
to pay. We are therefore constrained to vacate the restitution
order and remand for reconsideration of defendant's obligation,
if any, to make restitution.
22 A-0624-15T3
Defendant's remaining arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We affirm defendant's convictions and sentences, vacate that
portion of the judgment of conviction ordering that defendant make
restitution, and remand for reconsideration of the State's request
for restitution in accordance with this opinion. We do not retain
jurisdiction.
23 A-0624-15T3