STATE OF NEW JERSEY v. BENJAMIN THOMPSON

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4922-03T44922-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENJAMIN THOMPSON,

Defendant-Appellant.

_____________________________________________________

 

Submitted December 20, 2005 - Decided

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Mercer County, 03-03-0323.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor,

attorney for respondent (Dorothy Hersh, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant pled guilty on Indictment No. 01-10-1299 to fourth degree possession of marijuana, N.J.S.A. 2C:35-5a(1), and received a two-year probationary term. While on probation he was arrested and charged with arson. That led to a trial before a jury on Indictment No. 03-03-0323 which charged him with two counts of second degree aggravated arson. The jury found defendant guilty under count one of the lesser included offense of third degree arson, N.J.S.A. 2C:17-1b(1), and on count two of second degree aggravated arson, N.J.S.A. 2C:17-1a(2). On the aggravated arson count, the trial judge sentenced defendant to imprisonment for ten years with three and one-half years of parole ineligibility. On the arson count, he also imposed a concurrent five years with two years of parole ineligibility. In addition to the required assessments, the judge ordered $16,744 in restitution. On the violation of probation, he imposed a consecutive prison sentence of eighteen months.

Defendant appeals and offers the following arguments:

POINT I

DEFENDANT'S ARSON CONVICTIONS MUST BE REVERSED BECAUSE HIS INVOLUNTARY CONFESSIONS VIOLATED THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT II

DEFENDANT'S SENTENCE MUST BE VACATED BECAUSE ITS IMPOSITION VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Not Raised Below)

POINT III

THE RESTITUTION ORDER MUST BE VACATED BECAUSE THERE WAS NO HEARING AS TO DEFENDANT'S ABILITY TO PAY. (Not Raised Below)

After carefully considering the record and briefs, we are satisfied that Point I is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by the trial judge in his oral decision of September 19, 2003. Nonetheless we add the following comments. Defendant, who did not testify at the Miranda hearing, does not deny that the police properly gave him the Miranda warnings. Nor does he deny that he waived his rights. Rather, he contends that the statement was involuntary because he had been "tipsy" from alcohol approximately three hours before he confessed and because he had not slept that night and wanted to go to work. The only evidence on these points was what he told the officer. But the officer testified that defendant did not appear to be intoxicated and that defendant said he was not tired. As was the judge, we are satisfied beyond a reasonable doubt that the confession was not involuntary. State v. Johnson, 42 N.J. 146, 162 (1964).

Although the judge only cited aggravating factors 3, 6 and 9 as grounds for the sentence imposed, his comments indicate reliance on more than defendant's criminal record. More specifically, he relied on "the fact that you . . . jeopardiz[ed] the lives of people, innocent people that were living in that apartment building, and you did it for no other reason than to retaliate against somebody who you had a dispute with earlier. And this kind of conduct cannot be condoned." After this sentence was imposed, the Supreme Court issued its opinions in State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005). Those decisions require re-sentencing. Neither counsel addressed the issue of restitution at the trial level. The judge merely said he was "imposing a restitution obligation in the amount of $16,744, and $5,000 of that is to go to the owner of the property, the balance to the insurance company who made payment for the loss sustained." The State's brief concedes that "defendant is entitled to a restitution hearing to determine his ability to pay . . . ." Therefore, the hearing shall be provided at the time of the re-sentencing. Although the State argues that the amount of restitution should not be re-litigated, we disagree since the amount is obviously interrelated with defendant's ability to pay.

 
Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.

(continued)

(continued)

4

A-4922-03T4

December 30, 2005

 


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