STATE OF NEW JERSEY v. MARVIN SHAYLAND

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6106-05T46106-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN SHAYLAND,

Defendant-Appellant.

 

 

Submitted April 28, 2008 - Decided

Before Judges Parrillo, Gilroy and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-05-0675-1.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Robert H. Corrado, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marvin Shayland was indicted for purposeful and knowing murder, felony murder, armed robbery, and weapon-possession offenses. Tried by a jury, he was convicted of the lesser-included offense of reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), and acquitted of all other charges. Defendant was sentenced to a term of ten years, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were imposed, as was restitution in the amount of $10,216.40. Defendant appeals. Save for a remand to determine defendant's ability to pay the restitutionary amount, we affirm the judgment of conviction.

This criminal episode arose from an encounter that Paris Stevenson described as defendant's attempted armed robbery of him and his fraternal twin Perrin, and that defendant described as their attempted armed robbery of him. In any event, the encounter turned into a struggle over the robber's gun. It discharged more than once, killing Perrin and wounding Paris.

Around 11:30 p.m. on the evening of January 9, 2004, Paris and Perrin left a friend's house in Paterson, where they had been drinking, walked north on East 16th Street for one block before turning left onto Lafayette Street, and then turned right to reach the nearby train tracks, a popular shortcut. As they were walking along the tracks, Paris saw a man, later identified as defendant, approaching them from the portion of Warren Street east of the tracks. He had a gun and he was crouching, "like he was waiting for somebody to come down." The man stood up when Paris noticed him, demanded "you all's shit," which meant to Paris that they should "give up [their] money."

According to Paris, as the brothers were getting their money, "shots just started going off" from defendant. Perrin was closer to defendant, and when he pointed the gun toward them, Perrin "tried to slap the gun down." Perrin "charged" at him and Paris followed. Paris heard shots and felt that his leg was hit, but he kept charging because he was more concerned about Perrin.

Paris and Perrin managed to pull defendant to the ground and started hitting him. While defendant "still was trying to go for the gun," Paris took out a knife and "just started to stab him." At some point during that struggle Paris became able to see the defendant's face, as if "a hat just came off." Paris then dropped the knife and grabbed the gun himself. He could not get it to function, but he nonetheless pointed it at some people he noticed running toward the scene in order to warn them to stay away.

Paris and Perrin next started "jogging" down Warren Street, but Perrin told Paris to stop. Perrin lay down, and Paris saw Perrin bleed from the mouth as he tried to talk, which made Paris realize that Perrin, too, had been shot. Paris pointed the gun at the approaching people again and told them to stay away from his brother.

Paris then ran across the tracks toward Graham Avenue and went door to door, screaming for someone to call for an ambulance. At the corner of Graham and Warren, at the first intersection on Warren west of the tracks, Paris saw a police vehicle approach. He quickly discarded the gun he was carrying for fear of being shot by the police and because someone in the crowd who had gathered, calling Paris by his nickname, warned him to put the gun down.

One of these onlookers was Joseph Peterson, a local drug dealer. Around midnight, he was standing on the corner of Warren and Graham long after others had dispersed when he heard four gunshots at the tracks. Perrin was lying on the tracks calling for help and Paris, who had been standing next to Perrin, crossed the tracks and walked toward Peterson, whom he knew as an acquaintance. Paris was limping and had blood on his boots. He was also carrying a gun and said something like "don't mess with his brother." He seemed disoriented, as if he were high on drugs. As the police were already approaching the scene, Peterson warned Paris to get rid of the gun. Paris then tossed the gun to Peterson, who batted it away as he did with the clear glassine bag of cocaine which Paris also tossed his way.

Sometime later, in order to help Paris, Peterson picked up the gun, put it in his pocket and secreted it underneath an abandoned house one block away. After returning home about 1:00 a.m., Peterson then retrieved the gun a few hours later and brought it to his apartment, where he placed the silver .45 caliber automatic handgun inside a locked yellow duffle bag.

Daniel Findlay, a Paterson police officer, was the first to arrive at the scene on January 10, 2004, at 12:24 a.m. As he exited his car, he recognized Paris, saw that Paris's leg was "covered in blood," and offered assistance. Paris told him that Perrin had been shot and was at the end of Warren Street near the tracks. By then, officers Jack DeSalvo and Miguel Cruz arrived, and Findlay directed them to that location.

There, the officers found Perrin lying on the ground, next to the tracks. He managed to say that he had been shot, but otherwise had difficulty speaking, as he was gasping for air. Cruz accompanied Perrin to the hospital emergency room, where he died later that morning.

An autopsy revealed the cause of death to be a gunshot wound to the chest. The bullet that caused the chest wound entered in front and traveled downward before exiting in back near the lower ribs. Perrin also sustained a gunshot wound to the upper right arm. The entry and exit wounds on the arm were both on the back of the arm, but the State's expert, Andrew Falzon, could not determine what position the arm was in when it sustained the gunshot wound. Falzon also observed "gunshot defects," meaning bullet holes, on Perrin's jumpsuit and sweatshirt. The jumpsuit had three defects in the right upper chest and two on the right sleeve, while the sweatshirt had defects on the right sleeve. The locations of the gunshot wounds were consistent with those defects. Falzon also found gunpowder residue on the sleeve near one of the defects, visible to the naked eye, and explained that gunpowder can travel up to 18 inches, depending on the type of gun and ammunition.

Paterson police detective Steven Sela arrived at the scene at approximately 1:15 a.m. He and DeSalvo searched the scene, and while they found no gun, to the west of the tracks they found five .380-caliber shell casings and a used bullet of the same caliber. They also found a blood-stained black jacket with an orange lining; a camouflage jacket; a green "Army" hat; a wool hat; and another hat that DeSalvo called a "wool-type" hat and Sela called an "open-faced mask." A knife was later found at the scene, as well as a bag of crack, behind a house at the corner of Graham and Warren.

In the meantime, Findlay questioned Paris but got little response, so he called for an ambulance to take Paris to the hospital. In the ambulance, Paris became agitated and "very excited, very distressed" about Perrin's condition. At the hospital, it was determined that Paris had sustained a gunshot wound on one side of his left calf muscle. Officer Douglas Romary, who followed the ambulance to the hospital, was able to question Paris before he was taken to surgery. Paris described the shooter as a black male in his twenties who had a light complexion and was wearing a black ski mask and a black jacket, and he described the gun as a silver semi-automatic handgun. Following surgery, around 3:20 a.m., Paris told police that he had seen the man who shot him and Perrin on previous occasions and that he could identify him, although when shown defendant's photo, Paris said he was too distraught to proceed.

At approximately 1:40 a.m., after Paris had been taken to surgery and while Romary was relating Paris's statement to Detective Rafael Fermin, two nurses informed Romary and Fermin that a black male with several stab wounds had just arrived in the emergency room. The man fit Paris' description of a light-skinned black male in his twenties with a stab wound, so Fermin went to the emergency room to interview him. The man identified himself as Marvin Shayland, and Fermin identified him as defendant.

Fermin told defendant that he was investigating a homicide, and defendant denied any involvement. He said that he had been walking from his grandmother's home to his sister's home when he was robbed at the corner of 10th Avenue and East 18th Street. He described the robbers as three black men and that they used a knife, but could not offer any more of a description.

Defendant consented to an interview later that morning at about 10:40 a.m., when he was brought to headquarters. Fermin knew that defendant's grandmother's home was east of the tracks, that the location of the alleged robbery was to the north but still east of the tracks, and that defendant's sister's house was north of both those locations but west of the tracks; in other words, defendant would not have been at the corner where he claimed the robbery occurred if he had used the tracks as a shortcut. Defendant simply replied that he did not like to walk the tracks because people get robbed there.

Defendant also denied owning or firing a handgun, although tests performed later that same day revealed gunpowder particles on the right sleeve of defendant's black sweatshirt and gunpowder residue on defendant's right hand. These results indicated defendant's proximity to a fired weapon, but not who fired it.

Defendant was arrested sometime after the gunpowder tests and given his Miranda rights. When visited in jail by Detective Sela on January 11, 2004 at about 10:30 a.m., defendant said he wanted to tell the truth and then gave a statement. He indicated that he had been walking northward along the tracks, starting near 10th Avenue and East 18th Street, which was four blocks south of Warren Street. At some point two men "jumped out of a little side street" on the Graham Avenue side of the tracks. One man was wearing a hoodie, while the one holding a gun was wearing a hoodie, a face mask, and an "Army" jacket. The gunman was also stockier than the other man.

The gunman pointed the gun at defendant and told him to "give it up." The other man stood by, apparently waiting for defendant to surrender something. Defendant pretended to start lying on the ground face down, and then "went towards" the gunman and "started to tussle with him." That was when the gun fired, six times, or at least more than three times. As the gun was firing, the other man "started stabbing me . . . on my back," which defendant did not realize right away because the stabs felt like punches. When Sela asked if defendant was "ever able to . . . take control of the gun," defendant replied that he never had control of it.

Defendant managed to break free and run toward East 16th Street. He saw an occupied car, entered it on the passenger side, and told the driver to take him to the hospital because he had been stabbed. The driver was a stranger, but he obliged. Defendant, however, could not describe the car.

Two days later, on January 13, 2004, Paris also gave another statement, wherein he said he had dropped the knife in order to pick up the gun before any stabbing occurred, but never indicated that he ever picked up the knife again. On January 15, 2004, Paris identified defendant from a photographic line-up. It was also later revealed for the first time at trial that Paris had smoked PCP earlier in the evening of the confrontation. According to the defense medical expert, PCP and certain other drugs were not stimulants or depressants, but rather hallucinogens or psychokinetics, which can "produce a break with reality" by giving rise to misperceptions and delusions. PCP was even more pernicious because, as an anesthetic for large animals, it would make humans indifferent to pain, and therefore harder to subdue when aggressive. Low doses would create irritability and disorientation, while medium doses would cause the psychotic symptoms of imaginary images and voices.

At trial, Paris also denied robbing anyone or having a reputation for robbing people or for possessing a gun. He denied having a bag of crack in his possession on the night in question, but admitted having one conviction, in 2000, for selling drugs.

As noted, the jury, crediting the State's version, convicted defendant of reckless manslaughter. On appeal, defendant's main claims are jury charge error and improper intrusion into the deliberative process of one juror. Specifically, defendant raises the following issues:

I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR IN INSTRUCTING THE JURY ON THE LESSER INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER ON COUNT ONE (NOT RAISED BELOW).

II. THE TRIAL COURT VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY BY IMPROPERLY INTRUDING INTO THE DELIBERATIVE PROCESS OF JUROR TWO.

III. COMMENTS MADE IN THE PROSECUTOR'S OPENING STATEMENT WERE IMPROPER AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).

IV. DR. FALZON'S TESTIMONY THAT HE DETERMINED THE MANNER OF DEATH TO BE HOMICIDE WAS PLAIN ERROR (NOT RAISED BELOW).

V. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE JURY'S VERDICT AND FOR A NEW TRIAL.

(A)

THE VERDICT ON COUNT ONE FINDING THE DEFENDANT GUILTY ON THE LESSER INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER WAS AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED BELOW.

(B)

THE VERDICT ON COUNT ONE FINDING THE DEFENDANT GUILTY ON THE LESSER INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER WAS IRRATIONALLY INCONSISTENT.

VI. THE 10 YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT ONE FOR RECKLESS MANSLAUGHTER WAS MANIFESTLY EXCESSIVE AND THE ORDER OF $10,216 RESTITUTION WAS AN ABUSE OF JUDICIAL DISCRETION.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION

IN NOT FINDING MITIGATING FACTORS N.J.S.A. 2C:44-1(B)(2), N.J.S.A. 2C:44-1(B)(3), N.J.S.A. 2C:44-1(B)(5) AND N.J.S.A. 2C:44-1(B)(8) TO BE APPLICABLE.

(B)

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE CUSTODIAL TERM THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM.

(C)

THE TRIAL COURT ABUSED ITS DISCRETION

IN ORDERING RESTITUTION IN THE AMOUNT OF $10,216.

VII. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT THE DEFENSE OF SELF-DEFENSE NOT ONLY APPLIES TO THE CRIME OF MURDER BUT ALSO TO THE LESSER INCLUDED OFFENSES OF MURDER INCLUDING RECKLESS MANSLAUGHTER (NOT RAISED BELOW).

Other than those raised in Points I, II and VI(c), we are satisfied that the remaining claims of defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We now proceed to address the former.

(i)

For the first time on appeal, defendant claims plain error in charging the jury on aggravated manslaughter and reckless manslaughter as lesser included offenses to murder. He argues that recklessness was required for conviction of either form of manslaughter, and that there was no evidence of that particular state of mind because the State's witnesses described defendant's conduct only as purposeful and knowing. On that ground, he argues that manslaughter was improperly offered to the jury as a means to compromise between a murder conviction and outright acquittal, between "all" or "nothing." We discern no error, much less plain error, in the jury charge.

Because "[a]ppropriate and proper charges to a jury are essential for a fair trial," State v. Green, 86 N.J. 281, 287 (1981), "erroneous [jury] instructions on material issues are [usually] presumed to be reversible error." State v. Crisantos, 102 N.J. 265, 273 (1986) (citation omitted). Such errors can be excused only if they are "harmless beyond a reasonable doubt," ibid. (citation omitted), and are generally considered to be "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979).

"To give full force to the reasonable doubt standard and to preserve defendants' rights to have the jury consider all defenses supported by the evidence, th[e] Court has ruled that a defendant is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993). The only statutory qualification is that there be "a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). Even if the defendant did not object below to the absence of such a charge, whether due to neglect or strategic calculation, the trial court has "an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004) (citations omitted). Accord State v. O'Carroll, 385 N.J. Super. 211, 224-25 (App. Div.), certif. denied, 188 N.J. 489 (2006).

Murder requires the defendant to have acted "purposely" or "knowingly" in causing death or a serious bodily injury that resulted in death. N.J.S.A. 2C:11-3(a). One acts "purposely" when he has the "conscious object" of causing such a result, and "knowingly" if he is aware that death is highly probable or "practically certain" to result from his conduct. N.J.S.A. 2C:2-2(b)(1), (2).

Aggravated manslaughter requires the defendant to have caused death by reckless conduct "under circumstances manifesting extreme indifference to human life," N.J.S.A. 2C:11-4(a)(1), whereas reckless manslaughter requires only the reckless conduct resulting in death. N.J.S.A. 2C:11-4(b)(1). The offense is aggravated manslaughter if the risk of death from the defendant's conduct in the particular circumstances was a "probability," but reckless manslaughter if that risk was only a "possibility." State v. Williams, 298 N.J. Super. 430, 441-42 (App. Div.) (citation omitted), certif. denied, 150 N.J. 27 (1997), 156 N.J. 407 (1998); State v. Pridgen, 245 N.J. Super. 239, 246 (App. Div.) (citation omitted), certif. denied, 126 N.J. 327 (1991). Accord State v. Breakiron, 108 N.J. 591, 605 (1987). Both aggravated and reckless manslaughter have been specifically recognized as lesser-included offenses to purposeful or knowing murder. State v. Coyle, 119 N.J. 194, 228 (1990); Pridgen, supra, 245 N.J. Super. at 248.

The Court has "consistently held that all forms of homicide rationally supported by the evidence, whether they be lesser-included or alternative offenses, should be placed before the jury." State v. Purnell, 126 N.J. 518, 530. The N.J.S.A. 2C:1-8(d)(1) definition of lesser-included offenses requires an analysis of whether the lesser offense is to "be established by proof of the same or less than all the 'facts,' not 'elements,' required to establish the commission of the offense charged." State v. Graham, 223 N.J. Super. 571, 576 (App. Div.), certif. denied, 113 N.J. 323 (1988). Accord State v. Doss, 310 N.J. Super. 450, 455 (App. Div.), certif. denied, 155 N.J. 589 (1998).

This test has a low threshold, as a rational basis for a charge on the lesser offenses may exist even if "the jury is likely to reject the defendant's theory." State v. Mejia, 141 N.J. 475, 489 (1995), overruled on other grounds by State v. Cooper, 151 N.J. 326, 361 (1997). Indeed, the rational basis does not have to be "consistent with the theory of the defendant's defense" at all. State v. Brent, 137 N.J. 107, 118 (1994) (citations omitted). Instead, "[t]he test is 'whether there is room for dispute.'" Coyle, supra, 119 N.J. at 211 (citations omitted).

Here, the facts clearly indicate that the jury could have reached multiple conclusions as to defendant's state of mind as to the risk of death, including that he acted recklessly, with disregard of the "possibility" that death would result from his actions. Indeed, there was evidence that defendant attempted to rob the victims, who then struggled with him over control of the gun. Paris testified that defendant's only statement to him and Perrin was a demand for money, which implied that defendant would have been content to rely on the threat of force. Although there was testimony that defendant shot at the brothers prior to the struggle over the gun, which might have suggested a conscious intent of causing death or serious bodily harm, there was also testimony that defendant fired in panic or alarm, having been surprised by Perrin's sudden resistance after his initial seeming acquiescence to defendant's demand for money. In the alternative, if defendant did not fire the gun until the struggle on the ground, the jury could have found that he acted then with the same awareness of the risk of fatal injury that did not amount to a conscious intent to cause death. Either way, the conflicting accounts from Paris and defendant did not prevent the jury from rationally finding that the circumstances objectively represented only a possibility of death or serious bodily injury, rather than the high probability or practical certainty needed to convict defendant of murder. Thus, the court properly charged the lesser-included offenses of murder, which were clearly indicated in the record.

(ii)

Defendant next claims that the court interfered with a juror's deliberations in violation of defendant's constitutional right to trial by an impartial jury. After the third day of deliberations, when the jury advised the court they were deadlocked, the judge instructed them to continue deliberations in accordance with State v. Czachor, 82 N.J. 392 (1980). Thereafter, juror #2 informed the court outside the presence of the other jurors of his concern over deciding the question of defendant's guilt fairly because he had a brother-in-law who was thought to have been wrongfully convicted of a drug offense a few years ago. When the juror first raised the spectre of its possible impact on the present case, the judge assured that the juror understood they were separate matters. The judge then explained that jurors were not expected to entirely disregard their "life experiences" as if they "have been in a cocoon for their adult life," but rather "to use their good common sense . . . which has been developed over the course of their lives, and their life's experience in making judgments," including credibility. Jurors are to weigh each witness' statements against the evidence "which either supports or contradicts those positions," and thereby "chart your way through until you get to a point where you say, you know, I believe this is the state of affairs; . . . these are the facts."

The juror indicated he understood his function, but reiterated his recurring concerns. After denying defense counsel's motion for a mistrial, the judge then spoke with the juror again and explained that he was not required to block out thoughts of his brother-in-law's case. Rather, that case could play "some role" in his thinking, as long as he was still able to reach a fair and "reasoned determination" of the evidence as opposed to letting his brother-in-law's situation "override" the evidence.

The juror believed he could meet that standard, but he asked what would happen if he later doubted his ability to do so. The judge assured him that "[i]f you get to the point where you . . . feel that, you know, you can no longer fairly engage in a debate you can tell me again." The juror considered that for a moment and replied, "I'd rather do it that way then." The judge reminded him of the instruction that no juror "should ever, you know, give up something that they firmly believe in terms of the evidence of the case, just for the purpose of reaching a verdict." He added that the point of having deliberations was for each juror's insights to be considered, and for their insights to prompt further thought "until people reach a point where they say, you know, that there's a consensus about what, what's happened."

At a later point during deliberations, the juror again told the judge that he was still having difficulty with deliberations, although he did not mention his brother-in-law's case to the other jurors. When the judge asked if it were "something that you're considering and reflecting on as the deliberations are ongoing," the juror replied, "exactly."

The judge elicited through general questions that the jury was debating issues and that some of the juror's views were in conflict with the views of other jurors. The judge repeated the instruction that a "firmly held . . . conviction about the evidence shouldn't be changed just for the purpose of trying to reach an agreement." When the judge asked the juror if he were "still . . . able to exchange ideas and to consider and reflect upon positions . . . even though you haven't . . . come to an agreement," the juror said "exactly."

The judge explained again that "every juror has the right to make what we call experience-based judgments regarding the

. . . evidence in the case." "In other words, your experiences in life will reflect your judgments as how you see things being presented. And that's how we all operate. So to the extent that you're concerned that this experience is doing that, then I'm telling you, you don't have to be concerned about that." The judge gave the juror an analogy:

If you were on a civil case and, and the question is whether a doctor has committed malpractice to a patient, and there were discussions about witnesses about certain things that, that doctors would do normally in treating their patients. And you had an experience that was completely contrary to that. And you know, (Indiscernible) to doctors and I've never seen that happen. I mean, you could use that information, because it's part of your life experience, to make a determination as to what that, that you're hearing in the courtroom, whether that is, is correct or not.

When the juror expressed concern that his brother-in-law's experience would make him "swing to one side," the judge replied that the application of one's life experiences was expected, and that firmly held understandings of the case or of any particular aspects should not be abandoned simply to reach agreement. As long as the juror discussed his views of the case with the other jurors and gave consideration to their views, it would be "fine" whether or not they reached agreement, "as long as the process works where everybody is . . . exchanging the[ir] . . . ideas and considering the evidence in a fair manner." The juror indicated he understood. The jury reached a unanimous verdict later that day.

Defendant now contends the judge's voir dire coerced the juror into returning a guilty verdict. We disagree.

The right to trial by a jury that is fair and impartial requires each juror to be "impartial, unprejudiced and free from improper influences." Panko v. Flintkote Co., 7 N.J. 55, 61 (1951) (juror discussed case with interested party before verdict). An irregularity is grounds for reversal and a new trial if it "could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." Ibid. "The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so." Ibid. Accord State v. Adams, 320 N.J. Super. 360, 366-69 (App. Div.) (court may substitute jurors before deliberations due to irregularity, but for irregularity that arises after deliberations start, court must discharge entire jury because substituting individual jurors amounts to interference with each juror's participation in deliberations), certif. denied, 161 N.J. 333 (1999).

Here, the only irregularity claimed by defendant is the court's instructions to the juror that encouraged continued deliberation. However, a trial court has the discretion to order a jury to continue deliberating after they have announced a deadlock, as long as the court sees a "reasonable probability of agreement" based on "such factors as the length and complexity of trial and the quality and duration of the jury's deliberations." Czachor, supra, 82 N.J. at 407 (citation omitted). Such an order should be accompanied by a reminder not to "'surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.'" Id. at 405 n.4 (quoting ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Commentary to 5.4, at 146-47 (Approved Draft 1968)). Indeed, the Court has only recently ruled that such a reminder must accompany every supplemental instruction to keep deliberating. State v. Figueroa, 190 N.J. 219, 221 (2007).

In this case, the judge gave such a reminder every time the juror voiced concern to the court. Moreover, the judge patiently assured that the juror understood that he did not have to block out thoughts related to his brother-in-law's situation, and he emphasized that the juror was not expected to reach agreement with the other jurors by abandoning or compromising honestly held positions that were informed by his understanding of his brother-in-law's case. These instructions were balanced and unhectoring, and the juror's apparent comfort in repeatedly approaching the court further suggests the absence of intimidation or coercion. We are satisfied, therefore, that the court's instructions did not have a tendency to influence the juror to take a different view of the evidence or to participate in deliberations in a different manner than he otherwise would have done.

(iii)

As part of his overall challenge to the sentence imposed, defendant argues that the court erred in ordering restitution without first determining his ability to pay. We agree with this aspect of defendant's sentencing argument.

Restitution may be ordered if the victim, or the nearest relative of a homicide victim, has "suffered a loss," and if the defendant is either able to pay or, "given a fair opportunity, will be able to pay[.]" N.J.S.A. 2C:44-2(b)(1), (2). The amount of restitution is to reflect "all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay." N.J.S.A. 2C:44-2(c)(2).

Here, the court ordered restitution of $10,216.40, which represented the hospital and funeral expenses for Perrin. It denied restitution for Paris' hospital costs and lost income because the jury acquitted defendant on all the offenses that he was charged with committing against Paris. Defendant did not challenge the amount of Perrin's hospital and funeral expenses below and we see no reason to disturb that finding on appeal. However, while the amount of compensation may be undisputed, it must be consistent with defendant's ability to pay. Yet there was no such finding made by the sentencing court and for this reason we are constrained to remand solely for a determination of a proper amount of restitution to reflect all financial resources of defendant, including his likely future earnings. As noted, all other aspects of defendant's sentencing arguments as well as the remainder of his claims on appeal are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

 
Remanded to reconsider restitutionary amount in light of defendant's ability to pay. The judgment of conviction is affirmed in all other respects.

Rodney Fields, who lives at 156 Warren Street, heard someone banging on his front window, opened the door, and saw Paris limping, carrying a silver gun, and looking toward the tracks. Fields called 9-1-1, and when he returned to the door he saw Paris heading towards Graham.

Hospital personnel had already collected the man's clothing, which included a black sweatshirt and a white T-shirt, both with blood stains.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

After first denying that he was on drugs during the night in question, in subsequent interviews during January and February 2004, Paris finally admitted he was.

(continued)

(continued)

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A-6106-05T4

May 19, 2008