State of New Jersey v. A.H.-s. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-1489-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
A.H.-S.,1
Defendant-Appellant.
________________________
Argued October 16, 2024 – Decided November 15, 2024
Before Judges Sumners and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 22-02-0091.
Kevin S. Finckenauer, Assistant Deputy Public
Defender, argued the cause for appellant (Jennifer N.
Sellitti, Public Defender, attorney; Kevin S.
Finckenauer, of counsel and on the brief).
Timothy Kerrigan, Chief Assistant Prosecutor, argued
the cause for respondent (Camelia M. Valdes, Passaic
1
We use initials for the defendant, the victim, and certain witnesses to protect
the victim's privacy interests. N.J.S.A. 2A:82-46(a); R. 1:38-3(c)(9).
County Prosecutor, attorney; Timothy Kerrigan, of
counsel and on the brief).
PER CURIAM
After an initial trial ended in a mistrial because the jury was hung, a
second jury found defendant guilty of ten of the seventeen offenses charged:
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2A(1); six counts of
second-degree sexual assault, N.J.S.A. 2C:14-2(b); second-degree endangering
the welfare of a child/sexual contact with child by caretaker, N.J.S.A. 2C:24-
4(a)(1); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a);
and third-degree tampering with a witness, N.J.S.A. 2C:28-5(a)(1). Defendant
was sentenced to an aggregate forty-five-year prison term with twenty-five years
parole ineligibility.
Defendant appeals, arguing:
POINT I
THE RECORDED INTERROGATION WAS
REPLETE WITH HIGHLY IMPROPER AND
INFLAMMATORY REMARKS BY THE
INTERROGATING OFFICER IN WHICH HE
REPEATEDLY OPINED ON THE VICTIM'S AND
DEFENDANT'S CREDIBILITY, REPEATEDLY
FORCED THE DEFENDANT TO CATEGORIZE
THE VICTIM AS A LIAR, AND REPEATEDLY
REGURGITATED THE EXPLICIT ALLEGATIONS
OF THE VICTIM. (PARTIALLY RAISED BELOW).
A-1489-22
2
A. Detective Borkowski Repeatedly
Opined That [Defendant] Was Guilty and
[the victim] Was Telling the Truth and
Went into Detail about the Basis for Those
Beliefs, Intruding on the Jury’s Most
Important Factfinding Function.
B. Detective Borkowski Repeatedly
Demanded that [Defendant] Label [the
victim] a "Liar" if his Version of Events
Was True, Which the State is Forbidden
From Arguing at Trial.
C. The Repeated Statements by Detective
Borkowski Giving Detailed Retellings of
the Allegations as Relayed to Him by [the
victim] Further Bolstered Her Credibility
and Were Grossly Prejudicial.
POINT II
THE TRIAL COURT ERRED IN FORCING THE
JURY TO CONTINUE DELIBERATING WHEN IT
STATED IT WAS HUNG AFTER FOUR DAYS OF
DELIBERATIONS. ADDITIONALLY, THE
IMPROPER INSTRUCTION TO CONTINUE
DELIBERATING WAS UNDULY COERCIVE,
FAILED TO CONFORM TO THE MODEL CHARGE,
AND VIOLATED [DEFENDANT'S] RIGHTS TO
DUE PROCESS AND A FAIR TRIAL. (PARTIALLY
RAISED BELOW).
POINT III
THE TRIAL COURT GAVE UNDUE WEIGHT TO
THE GENERAL DETERRENCE FACTOR AND
FAILED TO CONDUCT AN ADEQUATE
A-1489-22
3
YARBOUGH[2] ANALYSIS BEFORE IMPOSING
CONSECUTIVE SENTENCES, RESULTING IN AN
EXCESSIVE FORTY-FIVE-YEAR SENTENCE.
ADDITIONALLY, THE TRIAL COURT FAILED TO
HOLD A MANDATORY ABILITY TO PAY
HEARING BEFORE IMPOSING FINES AND
RESTITUTION TOTALING MORE THAN $40,000.
POINT IV 3
STATE V. HILL REQUIRES THE REVERSAL OF
[DEFENDANT'S] WITNESS TAMPERING
CONVICTION.
Considering these contentions in light of the record and applicable law,
we affirm defendant's convictions and sentences with the exception of the Sex
Crimes Victim Treatment Fund (SCVTF) penalty and the witness tampering
conviction and sentence. We reverse and remand the SCVTF penalty because
the trial court failed to provide a statement of reasons for the assessment. We
reverse the witness tampering offense because the trial court did not instruct the
jury that the State must prove defendant intended to obstruct the prosecution as
required by our high Court's recent decision in Hill.
2
State v. Yarbough, 100 N.J. 627, 643-44 (1985).
3
Because State v. Hill, 256 N.J. 266 (2024), was decided after defendant
submitted his merits brief, he raised this argument in a Rule 2:6-11(d) letter to
the court and addressed the State's opposition in his reply brief.
A-1489-22
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I.
Interrogation Video
In June 2018, the Passaic County Prosecutor's Office (PCPO) Special
Victim's Unit received a report that defendant had sexually assaulted his fifteen-
year-old stepdaughter (the victim) for several years beginning when she was ten
or eleven years old. The PCPO met with the victim and her mother, wherein
defendant's alleged sexual assaults were detailed.
The PCPO went to defendant's workplace, and he voluntarily agreed to go
with them to their office to be interviewed. After waiving his Miranda4 rights,
defendant gave a video-recorded statement to PCPO Detective Michael
Borkowski. In response to Detective Borkowski's disclosure of the victim's
allegations, defendant said he hugged and touched her breast by "mistake."
Defendant also admitted he went to her bed on several occasions to give her
"kisses," and watched videos in bed with her while "hugging." He characterized
the victim as "confused," but did not specifically accuse her of making false
allegations.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1489-22
5
Throughout the interview, Detective Borkowski repeatedly told defendant
he did not find his story credible. Detective Borkowski advised defendant, "I
can't help you if you continuously lie and tell me that something didn't happen
when I know and you know that it did." Detective Borkowski later said, "I'm
having a hard time believing you," and the reason is "I spoke to [the victim],
[and she] gave me details that she wouldn't be able to make up." Borkowski
responded to defendant's denials, commenting "[t]hat's not true," and "[d]o you
expect me to believe that?" Borkowski also said the victim had "no reason to
lie," and she was "very straightforward with me."
About six months before defendant's first trial, the motion court conducted
a Miranda hearing to determine the admissibility and voluntariness of
defendant's interrogation statement to Detective Borkowski. The court ruled the
interrogation statement was admissible at trial, but did not resolve defendant's
hearsay contentions, stating they were pretrial issues to be resolved later. The
court, however, suggested the parties try to reach an agreement as to what
portions of the interrogation statement should be redacted. The court added it
would decide if the parties could not agree on "what [statements] can be
admitted."
A-1489-22
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At trial before a different court, the State moved to admit the interrogation
video, with the prosecutor explaining "[defense] [c]ounsel and I have reviewed
the [video] and we've agreed to edit certain portions out where there is no
speaking between the parties." Defendant did not object to the admission of any
interrogation statement by the detective or defendant. After the jury was unable
to reach a verdict, a mistrial was declared.
On the first day of the second trial before a different court, the State's
admission of the interrogation video was discussed. Defendant did not object to
its admission and told the court the video was redacted to remove "dead air"
periods when defendant was by himself in the interrogation room. Based on the
parties' approved interrogation video, the court instructed the jury about the
video it would be viewing. Prior to Detective Borkowski's testimony, the court
told the jury:
During the audio/video recorded interview of
[defendant] that you are about to see, there are remarks
by the detective conducting the interview, Detective
Borkowski, pertaining to the allegations made by [the
victim] and the purported credibility of those
allegations. During the course of the interrogation, the
detective repeats [the victim's] allegations, tells
[defendant] that he believes [the victim], and that he,
the detective, knows [defendant] did what he is accused
of. These statements by the detective constitute an
interrogation technique to elicit a response from
[defendant]. I am hereby instructing you that any and
A-1489-22
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all remarks by the detective about what is contained in
the interrogation video are not evidence and they are
not to be considered by you at all during the
deliberations, nor may you assume or infer that the
police remarks are based upon additional evidence not
testified to at trial. While law enforcement officers are
permitted to make such statements as part of their
interrogation techniques, such statements are not
evidence. What, if anything, is depicted in the audio
and video recording statement of [defendant] is a
question of fact and, as such, is entirely up to the jury
to decide.
During defendant's testimony and summation, defense counsel referenced
the video, arguing it shows defendant maintained his innocence despite the
detective's accusations.
Before us, defendant argues the admission of Detective Borkowski's
statements requires reversal of his convictions. Detective Borkowski repeatedly
opined on the credibility of both the victim and defendant, prodded defendant to
call the victim a liar, detailed the victim's explicit allegations, and argued with
defendant. Defendant maintains the detective "demanded" that defendant label
the victim a liar and these statements were inadmissible and severely prejudicial.
Citing State v. Bunch, 180 N.J. 534, 549 (2004), defendant argues that "[j]ust as
an [law enforcement] officer should not be opining on witness credibility,
neither should the defendant be forced into doing so." He acknowledges no
objection was made at trial, but contends he objected to the admission of the
A-1489-22
8
interrogation video during the Miranda hearing prior to the first trial, and thus
argues the plain error rule should not apply. Defendant rebuts the State's
contention the admission of the interrogation video was invited error, claiming
there is nothing in the record evincing he acquiesced to the jury viewing it.
Rather, he claims he opposed the video's admission at the Miranda hearing, and
requesting a limiting instruction before it was shown to the jury does not indicate
a desire to admit the video.
Based upon our review of the record, defendant did not object to the
admissibility of Detective Borkowski's statements made during the
interrogation. While defendant unsuccessfully objected to the admissibility of
his interrogation statement based on a Miranda violation, he did not challenge
the detective's statements on the grounds that they were prejudicial as he does
on appeal. The motion court noted the admissibility of the statements was a
pretrial issue for the court to determine if the parties could not agree on
redactions. Although the parties reached agreement on "dead air" redactions,
defendant never sought to exclude Detective Borkowski's statements regarding
the victim's credibility and defendant's lack of credibility. Thus, the State
correctly contends invited error applies because of defense counsel's "active
participation in the redaction of the interrogation video and the crafting of the
A-1489-22
9
accompanying jury instruction, followed by his affirmative use of the video
during [d]efendant's testimony and again in summation."
Under invited error, we do not review a claim of error when a party's
statements or conduct were relied upon by the trial court in reaching a decision
later appealed. See Brett v. Great American Recreation, 144 N.J. 479, 503
(1996). Defendant had ample opportunity to demand the statements be redacted
but chose not to. Because defense counsel advised the court there was an
agreement on the interrogation video redactions, the court had no reason to
address redactions of statements regarding the victim's and defendant's
credibility.
Even if invited error does not apply, plain error applies because defendant
did not object to Detective Borkowski's statements at trial. When there is no
objection, we must assume "defense counsel did not believe the remarks were
prejudicial." State v. Pressley, 232 N.J. 587, 594 (2018) (internal quotations
and citations omitted). Under plain error, a trial court error is disregarded on
appeal unless it "clearly capable of producing an unjust result." R. 2:10-2.
There is no question that Detective Borkowski's statements would be
inadmissible as live testimony because they bolster the credibility of the victim's
allegations and attack defendant's credibility. See State v. Lazo, 209 N.J. 9, 24
A-1489-22
10
(2012) ("Neither a police officer nor another witness may improperly bolster or
vouch for an eyewitness' credibility and thus invade the jury's province." ). But
we agree with the State that the statements were admissible to provide context
for the detective's interrogation questions and defendant's answers.
As the State points out, we addressed this issue in our unpublished
decisions in State v. Quackenbush, No. A-0411-16 (App. Div. July 29, 2019)
and State v. Graham, No. A-1111-10 (App. Div. May 16, 2013), where the
defendants objected to the admission of law enforcement's interrogation
statements questioning the defendant's credibility.5 In Graham, we held:
Where a defendant raises a valid objection based on
inclusion of otherwise inadmissible evidence in the
video-recording of an interrogation, the court should
consider whether redaction is necessary or a limiting
instruction directing the jury on permissible and
impermissible uses of the testimony will suffice to
prevent misuse of the evidence.
[Slip op. at 27.]
In Quackenbush, we found the reasoning in Graham persuasive and affirmed the
admissibility of the detective's statements challenging the defendant's credibility
5
In Quackenbush, citing Trinity Cemetery Ass'n, Inc. v. Twp. of Wall, 170 N.J.
39, 48 (2001) and Rule 1:36-3, we held unpublished opinions are not
precedential but that the facts and analysis found therein may shed light on the
issues before us. Slip op. at 31 n.8.
A-1489-22
11
because the trial court properly directed the jurors on the limitations on the
State's use of the interrogation statements. Quackenbush, slip op. at 32.
The trial court here followed suit, instructing the jury that
remarks by the detective about what is contained in the
interrogation video are not evidence and they are not to
be considered by you at all during the deliberations, nor
may you assume or infer that the police remarks are
based upon additional evidence not testified to at trial.
As in Quackenbush and Graham, we conclude the admissibility of Borkowski's
statements was not error let alone plain error.
II.
Jury Deliberations
The jury deliberated on April 1, 4, 5, and 6, 2022 without returning a
verdict. On the morning of April 6, the jury sent a note to the court, stating:
"We only have a unanimous decision on four charges after reviewing all
requested testimony and believe we are hung at this time." Defense counsel
moved for a partial verdict and mistrial, arguing that sending the jury back in to
deliberate further would cause "injury" to their conscience by "putting pressure"
on them. The court disagreed, and instructed the jury:
Okay. I need you to return to the deliberation room,
okay? We have checked the record. You have been —
without listening to testimony during the trial and times
that you've had playback and I've read back the law,
A-1489-22
12
you've done approximately nine and a half to 10 hours
of deliberation, which translates to a day and a half,
okay? You know, in like terms of the hours we work
here. So I'm going to ask you at this time to return to
the sixth floor and continue your deliberations.
The next day, the jury found defendant guilty of first-degree aggravated sexual
assault, six counts of second-degree sexual assault, second-degree endangering
the welfare of a child, third-degree aggravated criminal sexual contact, and
third-degree tampering with a witness.
Defendant claims his convictions should be reversed because the trial
court erred in "forcing the jury to continue deliberating." He maintains the
court's instruction was "coercive" given the jury had already deliberated for ten
hours, a reasonable amount of time to determine whether it believed the
testimony of the victim or defendant. Defendant contends "there is no reason to
exclude the time [the jury] spent reviewing evidence from the overall
deliberation time the way the State and the trial court have done." And even if
the court's direction to the jury to continue deliberating was not error, defendant
argues "the trial court's faulty instruction was . . . sufficiently harmful to require
reversal." Defendant emphasizes that the instruction did not reflect "the model
charge's language that the jurors should 'not surrender [their] honest conviction
as to the weight or effect of evidence solely because of the opinion of [their]
A-1489-22
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fellow jurors, or for the mere purpose of returning a verdict.'" Model Jury
Charges (Criminal), "Judge's Instructions on Further Jury Deliberations"
(approved Jan. 14, 2013). Defendant also argues the court's instruction "could
be viewed as castigating the jury for not having spent enough time deliberating,
both intimidating the jury about the prospects of lengthy, continued
deliberations and shaming it for being in the unresolved position it was in. "
We are unpersuaded by defendant's contentions. We do not view the
court's instruction to the jury to continue deliberating as coercive or
intimidating, as defendant paints it.
A trial judge has the discretion to require further deliberations after the
jury announces its inability to reach a verdict; however, the exercise of that
discretion is not appropriate "if the jury has reported a definite deadlock after a
reasonable period of deliberations." State v. Czachor, 82 N.J. 392, 407 (1980);
see also State v. Ross, 218 N.J. 130, 145 (2014). If a jury communicates that it
is deadlocked, the trial court should consider "such factors as the length and
complexity of trial and the quality and duration of the jury's deliberations."
Ross, 218 N.J. at 144 (quoting Czachor, 82 N.J. at 407). If the deadlock is
"clearly intractable," then "the jury is deadlocked and a mistrial should be
declared." Id. at 145 (quoting State v. Figueroa, 190 N.J. 219, 237 (2007)).
A-1489-22
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The principle that a jury verdict "must not be the product of coercion" is
paramount and, thus, "appellate review of a trial court's supplemental instruction
is 'guided by a concern for the weighty role that the judge plays in the dynamics
of the courtroom.'" Id. at 144 (quoting Figueroa, 190 N.J. at 238). Trial courts
have the discretion to ensure a verdict is "free from untoward interference from
any source," including from the court. Id. at 145(quoting State v. Shomo, 129
N.J. 248, 257 (1992)).
The jury's note stated we "believe we are hung at this time." This is not
indicative of intractability or a deadlock. More importantly, however, the court
did not abuse its discretion by concluding ten hours of actual deliberation for a
trial in which defendant was charged with seventeen sexual offenses and witness
tampering, was unreasonably short. See Figueroa, 190 N.J. at 239 (noting the
"brevity of deliberations" that amounted to a single day in a trial with various
charges, including murder and attempted murder). Moreover, "it is not always
necessary for the trial court" to inquire of the jury whether further deliberations
will likely result in a verdict, particularly when "the jury had only been
deliberating briefly." Id. at 240. The court appropriately considered the length
of the deliberations and was in the best position to determine whether ten hours
was unreasonably short given the gravity of the charges and nuances of the case.
A-1489-22
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Though a "jury charge is presumed to be proper when it tracks the model
jury charge" verbatim, State v. Cotto, 471 N.J. Super. 489, 543 (App. Div. 2022)
(citation omitted), charges that do not recite the model charges are not
necessarily reversible error. The test is "whether the supplemental instruction
has improperly influenced the dissenting jurors to change their votes." Figueroa,
190 N.J. at 238. The court's charge did not single out dissenting jurors, impose
a deadline, nor state that a deadlock would necessitate a retrial. See id. at 237.
Nor did the charge suggest "a failure to agree on a decision will reflect adversely
on the sophistication, intelligence, impartiality, and competence of the jurors."
State v. Adim, 410 N.J. Super. 410, 426 (App. Div. 2009) (quoting Czachor, 82
N.J. at 405). The court's instruction merely acknowledged the "approximately
nine and a half to [ten] hours" of time the jury deliberated and asked them to
return to the jury room. The jury was instructed to continue deliberating only
one time. The instruction was brief, gracious, and not coercive: "I'm going to
ask you at this time to return to the sixth floor and continue your deliberations."
Thus, defendant's convictions should not be overturned on this basis.
A-1489-22
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III.
Witness Tampering
Between the first and second trial, the victim disclosed to law enforcement
that shortly after defendant was arrested and jailed, she received a hand-written
letter from defendant. The letter states: "I know that I deserve to go to prison
for the rest of my life or be killed maybe." Defendant wrote he was
"embarrassed" and "disgusted," and asked the victim to forgive him and to "help
me get out of here" and "if you don't do it they are going to send me to prison
and then nothing can be done." Defendant warned her that if she decided to
"help" him, she "ha[s] to be strong." The letter further pleads: "I need your help
no one else in this world can help me more than you take me out of here please
daughter for your siblings." The letter prompted the State to obtain a
superseding indictment to include a witness tampering charge.
Defendant's wife, the victim's mother, also disclosed that defendant wrote
her a letter around the same time he wrote the victim. This letter was not
included in the witness tampering charge against defendant.
At trial, defendant admitted writing the letter to the victim from jail. He
testified that his forgiveness request to the victim related the time when he got
angry with her for disobeying him, and claimed he wrote he "deserve[d] to go
A-1489-22
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to prison" for the rest of his life because he felt as if he was not a good father.
Defendant maintained he never sexually assaulted the victim.
The court charged the jury on witness tampering in accordance with the
model jury charge. The relevant portion of the charge stated: "The second
element the State must prove beyond a reasonable doubt is that the defendant
knowingly engaged in conduct that a reasonable person would believe would
cause a witness to, one, testify or inform falsely, and/or, two, withhold any
testimony, information, document, or thing." (Emphasis added). The jury found
defendant guilty of witness tampering.
Defendant argues his witness tampering conviction should be reversed
because the model jury charge read by the trial court did not follow the principle
pronounced in Hill, which was decided while his appeal was pending and applies
to his conviction. We agree.
The Hill Court recognized "the heartland of witness tampering
prosecutions either do not involve speech at all," or "prosecute unprotected
speech," like that integral to criminal conduct. 256 N.J. at 285. The Court held:
[A] defendant may be found guilty of witness
tampering for explicitly threatening a witness not to
cooperate with an investigation or asking a witness to
testify falsely, N.J.S.A. 2C:28-5(a)(1); withhold
testimony, (a)(2); elude legal process, (a)(3); absent
A-1489-22
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himself from a proceeding, (a)(4); or otherwise obstruct
such a proceeding, (a)(5).
[(Id. at 286-87) (emphasis added).]
The Court concluded that when the State's theory of witness tampering is
based on "the contents" of a "facially innocuous" letter, meaning it "is not
integral to the criminal act of tampering with a witness on its face," the
defendant can be found guilty of witness tampering only if he
intended his letter to cause [the victim recipient] to
testify or inform falsely, withhold testimony, elude
legal process summoning her to testify or supply
evidence, absent herself from any proceeding or
investigation to which she had been legally summoned,
or otherwise obstruct, delay, prevent or impede an
official proceeding or investigation. If a jury finds
beyond a reasonable doubt that defendant had such
intent, then his speech was integral to the criminal
conduct of witness tampering and he may be
constitutionally convicted for its contents.
[(Id. at 291-92).]
The Court therefore held a witness tampering jury charge must include the
subjective intent requirement where the heart of the allegations involves a
facially innocuous letter that did not explicitly ask or cajole the victim to commit
any of the acts enumerated above. Id. at 291.
We reject the State's contention that Hill does not apply here because
defendant's letter to the victim was not facially innocuous. Like Hill,
A-1489-22
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defendant's letter does not ask the victim to testify falsely or obstruct the trial.
To be sure, defendant asks her to "help me get out of here," several times, and
acknowledges that "no one else in this world can help me more than you."
Though there are legal methods to get someone out of jail, it is not clear how
the victim, a minor, could have helped defendant short of recanting her
allegations. However, as defendant contends, the letter "does not ask her to lie
on the stand, or to not appear at the trial, or to interfere with another witness's
testimony, nor does it threaten her." Accordingly, as prescribed by Hill, since
the jury was not instructed to find defendant subjectively intended the letter to
cause the victim not to testify that he sexually assaulted her, the witness
tampering conviction and the consecutive four-year flat sentence must be
vacated. That charge is remanded for a new trial consistent with this opinion.
IV.
Sentence
At sentencing, the trial court found aggravating factor three, the risk that
defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), reasoning
defendant denied committing the offenses of which he had been found guilty,
and showed no desire to engage in therapy or other measures to prevent the acts
from recurring. The court also found aggravating factor nine, the need to deter,
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N.J.S.A. 2C:44-1(a)(9), reasoning defendant's sentence will send a message to
the community and defendant that such behavior will not be tolerated. The court
found only one mitigating factor, defendant had no prior record, N.J.S.A. 2C:44-
1(b)(7).
On the first-degree aggravated sexual assault conviction, the court
imposed a sentence of thirty-five years with twenty-five years parole
ineligibility. For the six counts of second-degree sexual assault, which were
based on an offense committed on a different date than the aggravated sexual
assault, the court imposed a consecutive six-year sentence. Applying Yarbough
and State v. Torres, 246 N.J. 246 (2021), the court reasoned consecutive
sentences were justified for crimes that were independent of each other.
Concurrent sentences were imposed on the remaining convictions. The court
also imposed a consecutive four-year flat sentence on the witness tampering
charge in accordance with N.J.S.A. 2C:28-5(e). In sum, the court determined
the forty-five-year aggregate sentence with a thirty-year parole disqualifier was
just, considering the damage to the victim, the nature of the crime, and the
message it would send to the community.
As for the imposition of fines, the court noted defendant was thirty-six
years old, worked as a cook for thirteen years, and earned $900 per week.
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Defendant was ordered to pay fines and penalties totaling $33,148.50, including
$15,268.50 for restitution and $9,750 for the SCVTF penalty, N.J.S.A. 2C:14-
10. Regarding the SCVTF penalty, the court merely stated the amount assessed.
Defendant argues his sentences should be vacated because "the trial court
gave an improper amount of weight to the general deterrence factor, failed to
engage in the required [Yarbough] analysis before imposing consecutive
sentences, and imposed extensive fines and restitution without conducting an
ability to pay hearing." We disagree.
We review a "trial court's 'sentencing determination under a deferential
standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v.
Lawless, 214 N.J. 594, 606 (2013)). We may "not substitute [our] judgment for
the judgment of the sentencing court." Lawless, 214 N.J. at 606. We must
affirm a sentence if: (1) the trial judge followed the sentencing guidelines; (2)
the findings of fact and application of aggravating and mitigating factors were
"based upon 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)). Consequently, we are unpersuaded that the judge erred in sentencing
A-1489-22
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defendant as the record supports the judge's findings, and the sentence does not
shock our judicial conscience.
Defendant next contends the court erred in imposing restitution and the
SCVTF penalty without conducting an ability to pay hearing and providing a
statement of reasons for the amounts assessed. We disagree that the court failed
to consider defendant's ability to pay but agree it failed to provide a statement
of reasons.
A sentencing court may impose an SCVTF penalty against a defendant in
any amount "between a nominal figure and the upper limit prescribed by
N.J.S.A. 2C:14-10(a) for the degree of the offense at issue." Bolvito, 217 N.J.
at 224. In making that determination, a sentencing court "should begin by
considering the nature of the offense." Id. at 233. Moreover, courts "should
consider the defendant's ability to pay the amount assessed." Id. at 234. "If a
substantial penalty is assessed against a defendant who has no realistic prospect
of satisfying it, that penalty is destined to become an unsatisfied judgment."
Ibid. In determining "a defendant's ability to pay, the sentencing court should
look beyond the defendant's current assets and anticipated income during the
period of incarceration." Ibid. At sentencing, the "court should provide a
statement of reasons when it sets a defendant's SCVTF penalty within the
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statutory parameters," which "will apprise the parties, the victim, and the public
and will facilitate appellate review." Id. at 235.
The trial court considered defendant's ability to pay by noting that before
he was held for pretrial detention, he had been steadily employed for thirteen
years, earning a weekly salary of $900. The court, however, did not provide a
statement of reasons for the SCVTF penalty. We thus vacate only that portion
of defendant's judgment of conviction that imposed a $9,750 SCVTF penalty
and remand for the court to state the reasons for imposing the SCVTF penalty.
To the extent we have not addressed any other arguments raised by
defendant, we deem them without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
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