STATE OF NEW JERSEY v. FELIX LEBRON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0981-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FELIX LEBRON a/k/a JOSEPH WELLS,

Defendant-Appellant.

___________________________________

May 12, 2011

 

Argued October 4, 2010 - Decided

 

Before Judge A.A. Rodr guez, Grall and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-02-0224.

 

Amira R. Scurato, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Scurato, of counsel and on the brief).

 

Dorothy Hersh, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Ms. Hersh, of counsel and on the brief).

PER CURIAM

Defendant appeals from the July 23, 2008 judgment of conviction entered after a jury found him guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(c); third-degree burglary, N.J.S.A. 2C:18-2(a)(1); and third-degree criminal restraint, N.J.S.A. 2C:13-2(a)(1). The judge sentenced him to an aggregate term of thirty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served at the Adult Diagnostic and Treatment Center (ADTC), pursuant to N.J.S.A. 2C:47-1 to -10. He was also ordered to pay a $300 Victims of Crime Compensation Board (VCCB) penalty; an $800 Statewide Sexual Assault Nurse Examiner Program penalty; a thirty dollar Law Enforcement Officers Training and Equipment fund penalty; anda $2000 penalty to the Sex Crime Victim Treatment Fund (SCVTF).

On appeal, defendant asserts several claims of trial error, all raised as plain error. He also claims that both his sentence and the $2000 penalty the judge imposed under the SCVTF are excessive. We remand for further proceedings with respect to the SCVTF penalty but otherwise affirm.

I.

Both the victim, M.D., and defendant testified at trial. Credibility was thus the critical issue for the jury.

M.D. testified that she and defendant began a dating relationship in 2005; at some point he moved into her house and they lived together for "about . . . five months." They had an "intimate" relationship and defendant was "nice at that time." A "[c]ouple [of] months down the road[,] . . . [defendant] started getting . . . very different towards [her], . . . bossing [her] around and telling [her] what [she] had to do and how to go about [her] life." In January 2006, M.D. asked defendant to leave; he gave her a hard time but finally left. After defendant moved out, M.D. stated that he would call her, but she would never call him. Defendant called her at home and while she was at work; he called "[m]any times a day." M.D. stated that she "would argue with him and tell him to please leave [her] alone and stop calling [her] so much, that [she] did not want to be bothered with him anymore [sic]." She discussed this situation with her co-worker, Barbara Welke, and asked Welke to answer her phone and if defendant called, to "tell him [she was] at a meeting or . . . doing something where [she could not] speak to him."

M.D. stated that on June 13, 2006, she was walking on her street on her way home from work at approximately 4:45 p.m. Defendant was standing across the street in front of a body shop with "Eric."1 M.D. had brought some papers from her work that were for Eric. She approached the two men and said "hello" to defendant, who then asked her if he could "get a bucket that . . . he had left . . . in the basement." M.D. told defendant to wait where he was and that she would go into the basement and retrieve the bucket for him. She "didn't want [defendant] in [her] home," and wanted "nothing to do with him."

Defendant followed M.D. across the street. She again told him to wait and she would "come up with his bucket." She then unlocked her door, turned off her alarm and closed the door behind her. M.D. testified that she did not lock her door because it was her "intention[] . . . to go get the bucket, and just bring it right up to him and give it to him so he could leave." She never gave defendant permission to enter her house, adding that "he knew [she] didn't want him in [her] house." M.D. went to the basement, "got the bucket . . . and whatever else [she] could think that was his that [she] didn't realize . . . was there." As she was coming up the steps from the basement, she "heard a big slam and it was [her] front door, and [she] heard someone cross [her] front room very fast." "[T]hinking that it was [defendant]" and "thinking the worst things[,]" M.D. "got very upset, nervous. [She] started crying." Before she "went up the steps, [she] grabbed a pair of scissors that were laying on [the] basement floor . . . [t]o protect [her]self in case [defendant] had any intentions of hitting [her] or doing anything else to [her]."

Before M.D. could "get upstairs to get out of the basement, [defendant] was already coming downstairs and [closed] the door that goes to [the] basement behind him." M.D. was crying, asking defendant to leave her alone. He "kept pushing [her] with his arm to go back down the steps. . . . [H]e took [her] wrist and . . . forc[ed her] to go back down the steps." M.D. still had the scissors in her hand and defendant told her that "[she] wouldn't need them."

Once they were in the basement, defendant said, "You know what I'm here for. . . . I'm here to relieve myself." M.D. took this to mean that he "wanted to have sex with [her]." She "kept pleading and begging for [defendant] to leave [her] alone . . . because [she] was on [sic] [her] period." Defendant "forced" M.D. to say she still loved him; she was in fear for her life. Defendant told M.D. "to lay on the floor" and "to take [her] underclothing off." Defendant them removed his pants, laid down on top of her and "put his penis in [her] vagina." M.D. did not scream because she was "locked in a basement where no one would hear [her]." Defendant ejaculated and as he moved off her, they were both "drenched in blood" from her period. She gave defendant a towel to wipe himself; he used it and threw it on the floor.

Defendant "kept pleading [with M.D.] not to tell" anyone and she promised because she "just wanted [him] out of [her] house." Defendant put on his pants, picked up the bucket and left her house. M.D. remained in the basement "[s]till very upset, very nervous." She threw her bloody clothes into the washing machine, but left the scissors and the towel on the basement floor.

After she cleaned up, M.D. call 9-1-1 and asked to have a patrol car come to her house because she wanted "to put a restraining order on [her] ex-boyfriend." She did not tell the 9-1-1 dispatcher that she had been raped. When police officers arrived, "[a]bout five to ten minutes" later, she did not "tell them immediately at the time what happened[,]" but she was still "[u]pset and crying" and then stated that defendant "had forced [her] to have sex with him when [she] did not want to."

The police went into the basement and saw the scissors and the towel. A short while later, M.D. gave a statement at police headquarters.

The prosecutor showed M.D. a pair of scissors that had been marked S-1 for identification. M.D. stated those were not the scissors she picked up to defend herself, adding that she did not "remember having scissors like this in [her] house." She thought the scissors she used had an orange handle, which S-1 did not. She acknowledged she had been nervous at the time, and reaffirmed that she definitely had scissors and they were about the same size as S-1.

Barbara Welke testified that she has worked with M.D. at the Motor Vehicles Commission for seven-and-a-half years. She described their relationship as "like friends all the time"; they saw each other socially and would talk about "family problems and different things that have been going on." Welke was familiar with the history of M.D.'s relationship with defendant.

Police Officer Tomas Martinez responded to M.D.'s 9-1-1 call. He described her as "[n]ervous, . . . sad, . . . [and] distraught" upon his arrival. He went down into the basement and saw "a towel with some blood on it, used tampon, and underwear" on the floor. Detectives Terman and Ertel arrived, secured the scene, took photographs and collected evidence. The following day, Martinez and his partner, Officer Santiago, arrested defendant. They did not question defendant upon arrest because, Martinez explained, "it was Detective Terman's case and [he] did not want to jeopardize the case at all."

Detective Michael Terman testified that he responded to M.D.'s house, examined the basement and was present when Detective Ertel took photographs. He identified various photographs of the scene, which included the bloody towel, underwear and tampon. He also identified a photograph of the pair of scissors.

Terman interviewed defendant sometime following his arrest. After Terman advised him of his Miranda2 rights, defendant spoke to him voluntarily. He stated that he and M.D. had engaged in "a consensual sex act." Defendant was "very concerned" about "what type of evidence" the police had, and at one point "referred to . . . a 'problem.'" When Terman asked defendant what he meant, defendant would not respond. The police did not take a formal statement because defendant "wished the interview to end" at that point and stated that he "wanted to seek legal counsel."

Detective Thomas Ertel identified the photographs he took of M.D.'s basement on the night of the incident. He identified S-1 as the scissors he "collected as evidence" that night. He stated that he personally "conveyed all of th[e] evidence back to the Crime Scene Unit."

At the conclusion of Ertel's testimony, the prosecutor sought to move S-1 into evidence. Defense counsel asked if he could "have overnight to think about it[.]" Two days later, after the State rested, counsel advised the judge that he had "no objection to the scissors going in [as evidence] at this point."

Lawrence McLendon testified, on behalf of the State, that he had been incarcerated at the county jail at the same time defendant was there. They discussed their "cases sometimes." Defendant told McLendon that he was in jail for "a sexual assault," and described having sex with M.D. to reconcile after they broke up; he said he wanted to have sex with her but she was not "willing[,]" so he "took it"; he said that M.D. "struggled a little bit." Defendant did not tell McLendon that the sex was "consensual."

McLendon is a "certified paralegal," and defendant asked for his help; defendant "wanted to send a letter to the public defender's office because he . . . had not seen his lawyer . . . and he was frustrated about not having any contact with the public defender's office . . . to prepare himself for a defense or to find out what happened to his case . . . ." McLendon wrote a letter to the public defender's office for defendant.

At the conclusion of McLendon's testimony, the judge expressed concern that he had mentioned the public defender's office. Defense counsel stated that he was not concerned about it.

Defendant testified that he and M.D. had a "fine" relationship until 2006, when M.D. told him that "she wanted to be alone because her daughter was getting married" and she wanted to move to Linden with her daughter after the marriage. That is why defendant moved out in February 2006. After he moved out, he and M.D. would still see each other, "still had a little relationship going on."

On June 13, 2006, defendant testified that he was talking to Eric Soto across the street from M.D.'s house. M.D. came down the street, saw him and they "both kissed each other." M.D. and Eric then spoke about some paperwork she had brought him from work. Then M.D. and defendant walked towards M.D.'s house and he asked her if he could get "the bucket of supplies for [his] car" from her basement. M.D. agreed.

Defendant followed M.D. into her house and "locked the door behind her." M.D. did not tell him to remain outside. He denied entering the house with "the purpose to sexually assault her[.]" He and M.D. discussed "work[ing] at [their] relationship"; M.D. said she thought about it "at times." Defendant asked M.D. if she was seeing anyone and they got into an argument, which continued as they went down the steps to the basement.

M.D. suggested they go upstairs and have something to eat. She "put her hands on [defendant's] cheeks" and asked him "would [he] want to have sex with [her], and [he] said yes." M.D. then removed her tampon and undressed and they engaged in "consensual sexual intercourse." M.D. did not scream or cry; at no time did she pick up a pair of scissors. When they were finished, M.D. "put her clothes in the washer," and they both cleaned up. They went upstairs; M.D. "let him out" and he left. He then realized he had left his sunglasses in the basement; he returned and rang M.D.'s doorbell; she retrieved the sunglasses and gave them to defendant.

Heriberto (Eric) Soto is M.D.'s neighbor. On June 13, 2006, he was working at a garage across the street from her house. Defendant arrived and they had a conversation. M.D. approached on her way home from work. Soto saw M.D. and defendant "kiss on the che[e]k." After a brief conversation about papers M.D. had brought him, Soto observed M.D. and defendant walk to her house; they were talking and he saw them check the mail together. He did not hear defendant ask M.D. about retrieving any items he had left at her house.

Soto stated he was working on a car at the time, so he could not hear what M.D. and defendant were saying, nor did he observe them go into M.D.'s house. About a half hour later, Soto saw defendant leave M.D.'s house carrying what looked like a bag in his hand. Defendant walked towards his car; he was not running and "[e]verything was normal." Soto saw defendant drive away.

II.

We turn to the following contentions that defendant raises for our consideration:

POINT I

 

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE APPROPRIATE LESSER-INCLUDED OFFENSE OF CRIMINAL TRESPASS VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. I, PARAS. 1, 9 AND 10 [(Not raised below)]

POINT II

 

THE SCISSORS (AND THE PHOTOS THEREOF) WERE IMPROPERLY INTRODUCED AND THE INTRODUCTIONS SUBSTANTIALLY PREJUDICED THE DEFENDANT [(Not raised below)]

 

 

 

 

 

POINT III

 

THE TRIAL JUDGE FAILED TO VOIR DIRE THE JURORS WHO MAY HAVE SEEN THE DEFENDANT IN HANDCUFFS [(Not raised below)]

 

POINT IV

 

THE PROSECUTOR IMPROPERLY REFERRED TO DEFENDANT'S EXERCISE OF HIS RIGHT TO COUNSEL [(Not raised below)]

 

POINT V

 

IT WAS IMPROPER FOR THE PROSECUTOR TO ALLOW THE INFORMANT TO DISPARAGE DEFENSE COUNSEL'S ROLE [(Not raised below)]

 

POINT VI

 

THE DEFENDANT'S SENTENCE IS EXCESSIVE

 

POINT VII

 

THE SEX CRIME VICTIM TREATMENT FUND PENALTY IS "NOT TO EXCEED" $2,000. THE TRIAL JUDGE GAVE NO JUSTIFICATION FOR IMPOSING THE MAXIMUM AMOUNT [(Not raised below)]

 

Having reviewed these contentions in light of the record and the controlling legal principles, we discern no error, let alone plain error, warranting reversal of defendant's convictions; nor do we find any basis to modify the length of his sentence. We do, however, remand for reconsideration of the SCVTF penalty.

As noted, defendant's first five arguments are raised as plain error. We will not reverse on the basis of such error unless we find it was "clearly capable of producing an unjust result." R. 2:10-2. The possibility of producing an unjust result "must be real, one 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. Macon, 57 N.J. 325, 336 (1971). Moreover, our assessment of plain error "depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006). Furthermore, the absence of an objection at the time the alleged error occurred may well indicate that counsel did not consider such error to be significant in the context of the trial. Macon, supra, 57 N.J. at 333. With this standard of review in mind, we turn to defendant's claims of trial errors.

The trial judge held a charge conference on the record immediately prior to instructing the jury. When discussing the third count of the indictment charging burglary, the judge stated:

Count Three is the model burglary charge. I'm not charging the surreptitious remaining in the structure. That does not apply. We're limiting, instead of saying with purpose to commit an offense therein, we're stating with purpose to commit an offense, specifically a sexual assault. And that was . . . with both parties' agreement.

 

I'm not charging any lesser included any [sic] criminal trespass. It doesn't apply in this case. . . .

Not only did defendant not request a jury charge on criminal trespass, he raised no objection when the judge stated her determination that it did not apply here.

Where a defendant has failed to request a charge on the lesser-included offense of criminal trespass, we will find error "only if the evidence 'clearly indicates' that such a charge is appropriate." State v. Singelton, 290 N.J. Super. 336, 341-42 (App. Div. 1996) (citation omitted); State v. Choice, 98 N.J. 295, 299 (1985). "[A] trial court's duty to charge the jury on its own motion is . . . not self-executing, and that duty arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction." State v. Rivera, __ N.J.__ (2011) (slip op. at 24). In the absence of such a request, "the court is not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." State v. Denofa, 187 N.J. 24, 42 (2006).

The fourth-degree offense of criminal trespass is committed when "[a] person . . ., knowing that he is not licensed or privileged to do so, . . . enters . . . any . . . dwelling." N.J.S.A. 2C:18-3(a). The third-degree offense of burglary adds the element of "with purpose to commit an offense therein." N.J.S.A. 2C:18-2(a)(1).

Here, the jury heard two disparate versions of the circumstances under which defendant entered M.D.'s residence and what ensued. M.D. testified that defendant entered after she specifically told him not to come in and to wait outside; that defendant then followed her and forced her back down into the basement with the purpose of committing a sexual assault. Defendant testified that he and M.D. entered her house together and engaged in consensual sex.

On appeal, defendant posits a third version that, he claims, the jury could have accepted and would have resulted in a verdict on the lesser-included charge of criminal trespass. Defendant now asserts that the jury could have found that he entered M.D.'s house against her wishes with the purpose to effect a reconciliation and thereafter formed the intent to sexually assault her during the argument he claimed took place.

To warrant a charge on criminal trespass on that theory, the judge would have had to "sift" through the evidence and formulate a factual scenario that selectively credited and discredited portions of the conflicting evidence. Denofa, supra, 187 N.J. at 42. For thejury to convict defendant of criminal trespass it would have had to find that heentered M.D.'s home without permission in order to discuss reconciliation, then had an argument with her as a result of which he formed the intent to sexually assault her. This, in turn, would have required the jury to believe M.D.'s testimony that she denied defendant permission to enter her house, but disbelieve her testimony that the sexual assault occurred immediately upon his unpermitted entry.

We are satisfied that, where such parsing of the testimony and credibility assessments would be required to find defendant guilty of criminal trespass, the elements of that lesser-included offense are not "clearly indicate[d]" by the evidence. State v. Robinson, 136 N.J. 476, 490-91 (1994). The trial judge had "no duty to instruct the jury sua sponte on an included offense charge if the evidence d[id] not clearly indicate or warrant such a charge." State v. Thomas, 187 N.J.119, 132 (2006). Under the circumstances, we cannot conclude that the failure to charge the jury on that lesser-included offense constituted a "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." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Defendant's next contention, that admission of the scissors and the photographs depicting themin the basement constituted plain error, is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Suffice it to say, M.D.'s inability to identify S-1 as the scissors she held when defendant assaulted her is immaterial becauseDetective Ertel specifically identified S-1 as the scissors found in the basement and identified them as well in the photographs he personally took of the basement during the investigation that followed within a very short time of the assault. M.D.'s testimony went to the weight, not the admissibility, of the evidence. State v. Noel, 157 N.J.141, 148 (1999).

The photographs were moved into evidence during Ertel's testimony without objection by defendant. At the conclusion of Ertel's testimony, defendant was given the opportunity to reflect overnight on whether he would object to admission of S-1. Almost as an afterthought, two days later, defendant advised the judge he had no objection to the admission of S-1.

We reject defendant's claim of prosecutorial misconduct based upon the prosecutor's mention of S-1 and the photographs in summation, which consisted of the following:

I want you to remember the description the officers and the crime scene unit investigator gave when they examined the basement and the evidence collected. Things happen. On the stairs, the scissors are thrown. You will see a picture of that. It makes sense exactly where they landed. Things happen where you wouldn't expect things to land. But if you look at those pictures carefully, look where the stairs is [sic], where the speaker and the vacuum are. You will see that is not so unusual for the scissors to land there once they were taken away and thrown aside by [defendant].

 

This was not a case of the prosecutor "refer[ring] to matters that are not fairly supported by the evidence, or specifically misstat[ing] the evidence[,]" as defendant contends. While M.D. did not identify S-1 as the scissors she held, nor did she testify as to the photographs of S-1, Detective Ertel testified that he retrieved those scissors in the basement and personally photographed them at that location. Under these circumstances, it is not surprising that defendant did not object to these summation comments. In the absence of such an objection, "the remarks usually will not be deemed prejudicial." State v. Ramseur, 106 N.J. 123, 323 (1987). The failure to object also deprived the trial judge of the opportunity to take curative action. State v. Irving, 114 N.J. 427, 444 (1989).

During the trial, two jurors inadvertently entered the courtroom while defendant was seated at counsel table in handcuffs. The judge noticed the jurors "right away" and immediately instructed them to return to the jury room. We are satisfied that the judge's failure to voir dire thosejurors is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Defense counsel stated that he "didn't notice any reaction which would suggest to [him] that the juror [sic] saw anything out of the ordinary in the courtroom, other than being called back for a moment before the entire panel came back in. That's really all [he] saw." The judge had observed that defendant's hands were "at his lap under the table[,]" and noted that "counsel table . . . does . . . conceal the laps of the people who are seated behind the table." We discern no "plain error" to warrant reversal. Macon, supra, 57 N.J. at 333,

Defendant's remaining claims of trial error"are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

III.

We turn finally to defendant's sentencing issues. Because defendant had previously been placed on parole supervision for life as the result of a prior sexual assault conviction, he was eligible for a mandatory extended term of imprisonment. N.J.S.A. 2C:43-6.4(e). Based upon his first-degree conviction here, defendant was subject to a sentencing range between twenty years and life. N.J.S.A. 2C:43-7(a)(2).

On count one, defendant received a term of thirty years, subject to NERA, a five-year period of special parole supervision and parole supervision for life. Counts two and three merged with count one; he received a concurrent five-year term on count four.

Our scope of review of sentencing is limited; we engage in a three-step analysis:

[F]irst, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

 

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

 

The Court in Roth further explained that a sentence should not be modified unless there is "such a clear error of judgment that it shocks the judicial conscience." Id. at 364.

The Court recently reaffirmed this analysis in State v. Cassady, 198 N.J. 165, 180 (2009), in which it noted that sentencing review is "limited" and that "[a]lthough 'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts' . . . 'when reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court." Ibid. (citations omitted). Furthermore, an appellate court "should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." Id. at 180-81 (internal citations omitted).

Defendant contends the judge did not comply with the dictates of State v. Pierce, 188 N.J. 155 (2006), in imposing an extended term; defendant further contends that the judge "relied on aggravating factors which were insufficient to support such a lengthy term."

Defendant's reliance on Pierce is misplaced. There, the Court addressed the guidelines set forth in State v. Dunbar, 108 N.J. 80 (1987), for discretionary extended term sentencing. As noted, defendant was subject to mandatory extended term sentencing based on his record. N.J.S.A. 2C:43-6.4(e). "There was nothing discretionary about this determination." State v. Jefimowicz, 119 N.J.152, 162 (1990). In this situation,

[o]nly Dunbar's requirement that a sentencing court must weigh the aggravating and mitigating factors in determining an appropriate "base term" of the extended sentence is at all relevant . . . since even under mandatory extended sentencing, some discretion reposes in the sentencing court with respect to determining the base term, as well as the period of parole ineligibility.

[Id. at 162-63.]

 

With respect to the judge's weighing of aggravating and mitigating factors, suffice it to say we find "substantial evidence in the record[,]" Cassady, supra, 198 N.J. at 180, to support the judge's findings that aggravating factors three, six, and nine applied, N.J.S.A. 2C:44-1(a)(3), (6), (9), and that no mitigating factors applied, N.J.S.A. 2C:44-1(b). We discern no basis to "second guess" those determinations. Cassady, supra, 198 N.J. at 180.

Finally, defendant challenges the judge's imposition of the maximum penalty of $2000, payable to the SCVTF under N.J.S.A. 2C:14-10, without holding a hearing on his ability to pay that amount. He analogizes his situation to State v. Gallagher, 286 N.J. Super. 1, 23 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996), in which we held that in imposing a Victim of Crime Compensation Board (VCCB) penalty under N.J.S.A. 2C:43-3.1(a), "[t]here must be some relationship between defendant's ability to pay over the course of his incarceration and parole, and the actual VCCB penalty imposed."

The VCCB statute expressly requires that prior to imposing such a penalty, a judge "consider factors such as the severity of the crime, the defendant's criminal record, defendant's ability to pay and the economic impact of the assessment on the defendant's dependents." N.J.S.A. 2C:43-3.1(a)(1).

While N.J.S.A. 2C:14-10(a) contains no such language regarding penalties payable to the SCVTF,we are satisfied that defendant is entitled to the benefit of N.J.S.A.2C:44-2(a)(2), which provides that a "court may sentence a defendant to pay a fine in addition to a sentence of imprisonment . . . if . . . [t]he defendant is able, or given a fair opportunity to do so, will be able to pay the fine." N.J.S.A.2C:44-2(c)(1) further provides that "[i]n determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose."

We note that at sentencing the judge stated her intention to "enter[] the mandatory minimums" on the statutory penalties and assessments. The judge was not certain of the amount of the SCVTF penalty and stated, "we're going to check on that." Thereafter the amount of $2000 was entered on defendant's judgment of conviction with no explanation. We therefore remand for reconsideration of this penalty in light of N.J.S.A.2C:44-2(a)(2) and (c)(1).

Affirmed in part; remanded in part.

1 "Eric" was later identified as Heriberto Soto when he testified on behalf of defendant.

2 Miranda v. Arizona, 396 U.S. 868, 90 S. Ct. 140, 24 L. Ed. 2d 122 (1969).