STATE OF NEW JERSEY v. PABLO ACEVEDO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3861-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PABLO ACEVEDO,

Defendant-Appellant.

___________________________________________

April 25, 2011

 

Submitted February 16, 2011 Decided

 

Before Judges Axelrad, R. B. Coleman and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-10-1443.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).

 

RobertD. Bernardi,Burlington CountyProsecutor, attorney for respondent (Jennifer B.Paszkiewicz, AssistantProsecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Pablo Acevedo appeals from the judgment of conviction entered following a jury verdict that found him guilty of second-degree conspiracy, N.J.S.A. 2C:5-2(a)(1) (count one); two counts of second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (counts two and three); two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (counts four and five); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count seven); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count nine); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count ten). The jury acquitted defendant of first-degree criminal attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1). Although the indictment also charged Kelvin Rosa, Christian Nunez-Torres, Justo Dilone and Leonard Jimenez, defendant was tried alone on June 12, 13, 14 and 15, 2007, before a jury.1

At the sentencing hearing, the judge, after merging counts four, seven and ten with count five and counts one, two and nine with count three, imposed on count five, first-degree robbery, a term of twenty years in prison, eighty-five percent of which is to be served without the possibility of parole, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the judge imposed a five-year period of parole supervision to be commenced upon completion of the sentence of incarceration. On count three, second-degree burglary, defendant was sentenced to a ten-year term in prison, subject to NERA, consecutive to the sentence imposed for count five, also with a three-year period of parole supervision upon release. The court also ordered restitution in the amount of $5,000 to United Check Cashing (UCC).

I.

The events giving rise to the charges against defendant occurred on October 14, 2004. On that date, Officer Rodgers of the Willingboro Township Police Department received a call regarding an activated alarm at UCC located in Willingboro. Rodgers proceeded to UCC, and as he approached, shut off his vehicle's emergency lights, parked his car alongside of the building, exited his vehicle and made his way to the rear of the building. Rodgers noticed the rear door of the building had been pried open and, therefore, alerted his dispatcher, requested backup and drew his gun. Moments later, Rodgers heard gunfire erupt but he could not tell where it was coming from. The first round of gunshots hit him in the leg, a second round bounced off the wall and hit him in his vest, and something else bounced off the wall and hit him in the hand. Rodgers then ran to the front of the building where he took cover, but he still was unable to determine from which direction the shots were coming. When backup arrived at the scene, Rodgers was transported to the trauma center where the bullet was removed from his leg.

No suspect was apprehended at the scene. Fingerprints and DNA swabs taken by the Burlington County Prosecutor's Office of items in the store were matched only to the employees. The Burlington County detectives found six nine-millimeter shell casings along a trail that ran through the woods behind the shopping center where UCC was located. They found two acetylene torches in the teller station inside the store, a walkie-talkie, crowbar, pocketbook and the dial to the large floor safe, which was torn off. In the woods behind the store, detectives also found a globe light and bulb that belonged to an outdoor fixture of UCC. Bullets in the dirt, close to the rear door of the building, were also found.

The store was equipped with audible sirens and cameras, and the security system of UCC was monitored by Barrington Security Systems. If an alarm were activated, it would send a signal to the central processing unit. When Barrington Security employees arrived to check the system on the date of the incident, they observed that the lines to all the outside cameras had been cut and the external siren had been ripped off the building.

The next day, Michael Fields, the vice-president of UCC and Stuart Rubin, the owner, arrived at the location and eventually entered the building to observe what was missing. They noted the interior was in disarray and that approximately $629 was missing from a drawer.

Almost one and a half years later, on June 9, 2006, the police interviewed defendant. Detective Abadia of the Burlington County Prosecutor's Office, who is fluent in Spanish, was called at approximately 2:00 a.m. to assist in interviewing defendant regarding the UCC case. Detective Abadia and four other Burlington County officers traveled to New York to speak with defendant. Before speaking with defendant, the detective advised him of his Miranda warnings in Spanish and read the Miranda card. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant signed the card and agreed to talk. The interrogation was electronically recorded, and then translated from Spanish to English. At the trial, the transcript was read to the jury, and the prosecutor then moved to admit the transcript into evidence. The court granted the State's motion, enabling the jury to review the written version of the oral confession.

During the interview, defendant stated that on October 14, 2004, he and the co-defendants went to UCC. He stated that once at UCC, he had to urinate and while doing so, he heard a gunshot. Defendant at first denied knowledge of the break-in, and Detective Abadia responded that if defendant did not tell the truth, he could be charged with shooting a police officer. Defendant then alleged that Rosa was the only one armed that night and that Rosa had been soliciting his help in committing burglaries prior to October 14, 2004. Defendant told the detective that Rosa was obsessed with wanting to shoot a police officer and that his job during the break-in was to help and take items from the store to the truck they were using that night. Defendant alleged that it was when he was first about to enter the store that the shooting started.

Defendant admitted prying open the rear door of UCC with co-defendants and that, after the shooting, he ran into the woods behind the store where he was picked up in a truck by co-defendants, Nunez-Torres and Dilone and proceeded to pick up the other co-defendants, Rosa and Jimenez. Defendant claimed that after the incident, they were discussing the evening's events, and all the co-defendants told Rosa he should not have fired his weapon because it would lead to an officer calling backup.

On appeal, defendant raises the following points of error:

POINT I: IN THE ABSENCE OF ANY EYEWITNESS IDENTIFICATION AND ANY PHYSICAL EVIDENCE CONNECTING DEFENDANT TO THE CRIME, THE COURT'S FAILURE TO INSTRUCT THE JURY ON THE NEED TO CORROBORATE DEFENDANT'S CONFESSION, VIOLATED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).

 

POINT II: THE ADMISSION OF THE TRANSCRIPT OF THE TAPE-RECORDED CONFESSION AFTER THE TRANSCRIPT HAD BEEN READ TO THE JURY, VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL BECAUSE ITS ADMISSION INEVITABLY ASCRIBED GREATER WEIGHT TO THE CONFESSION THAN IT OTHERWISE WOULD HAVE HAD.

 

POINT III: THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below).

 

POINT IV: DEFENDANT'S RIGHTS TO DUE PROCESS, A FAIR TRIAL, AND THE EFFECTIVE ASSISTANCE OF COUNSEL WERE VIOLATED WHEN THE COURT DENIED HIS PRO SE MOTION FOR A NEW TRIAL AFTER IT ALLOWED TRIAL COUNSEL TO DEFEND HIMSELF AGAINST DEFENDANT'S CHARGE THAT HE HAD BEEN INEFFECTIVE. THE MATTER SHOULD BE REMANDED FOR A HEARING AT WHICH NEW COUNSEL IS APPOINTED TO REPRESENT DEFENDANT ON THE MOTION.

 

POINT V: THE AGGREGATE TERM OF 30 YEARS, 25 YEARS AND SIX MONTHS WITHOUT PAROLE, IS GROSSLY EXCESSIVE FOR THIS DEFENDANT WHO WAS NOT ARMED, WAS ACQUITTED OF ATTEMPTED MURDER, AND WAS FOUND GUILTY OF THE REMAINING CHARGES UNDER A THEORY OF CONSPIRATORIAL LIABILITY.

 

POINT VI: DEFENDANT IS ENTITLED TO A REMAND FOR A RESTITUTION HEARING.

 

POINT VII: CONSECUTIVE PERIODS OF PAROLE SUPERVISION VIOLATE DEFENDANT'S RIGHT TO DUE PROCESS AND N.J.S.A. 2C:43-7.2(c), AND ARE ILLEGAL.

 

We have considered these arguments in light of the record and applicable legal standards. We affirm in part and remand in part.

II.

We first address defendant's argument that the trial court failed to instruct the jury on the need for evidence to corroborate his statements to police. Since this alleged error was not raised below, it is reviewed under the plain error standard, whereby it will not be overturned unless it is "clearly capable of producing an unjust result." R.2:10-2; State v. Robinson, 200 N.J. 1, 20 (2009).

"Confessions are not self-executing." State v. DiFrisco, 118 N.J. 253, 274 (1990). "It is a widely accepted doctrine . . . that an uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for crime." State v. Lucas, 30 N.J. 37, 51 (1959). "On motion to direct an acquittal on grounds of lack of corroboration the trial court must determine whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy[.]" Id. at 62. "[T]he State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness." Id. at 56. Stated another way, "[a]ll elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense 'through' the statements of the accused." Smith v. United States, 348 U.S. 147, 156, 75 S. Ct. 194, 199, 99 L. Ed. 192, 200-01 (1954).

Lucas provides an example of the corroboration necessity. In Lucas, the defendant's confession admitting he committed arson was properly corroborated by independent evidence that confirmed details contained in the confession such as the time the fire started, the exact room in which the fire originated, and the "layout and contents" of that room. Lucas, supra, 30 N.J. at 58-59. Further, specific pieces of glass found in that room supported defendant's account of how he committed the crime. Id. at 58.

On the other hand, in In re W.J., 116 N.J. Super. 462, 470 (App. Div. 1971), the State failed to corroborate the defendant's confession to breaking and entering since the only evidence offered was testimony of a police officer who stated that a witness had seen defendant that night in the vicinity of the building.

Here, there was only one eyewitness to the burglary, Officer Rodgers, who did not specifically see defendant or the co-defendants. There were no video footage, fingerprints, DNA evidence and no arrests at the scene. We, nevertheless, find the State presented independent evidence for the charges against defendant. As explained above, Officer Rodgers testified that after he responded to an alarm call at UCC, he was shot several times, and transported to the hospital for treatment. There was testimony regarding damage to the property of the store, the amount of money stolen, and the detectives' recovery of shell casings and bullets from the scene. Additionally, defendant confessed that he went to Willingboro with the co-defendants, that he had an active role in the burglary carrying the items from the store to a truck, and that he fled the scene through the woods. "New Jersey's requirements are narrow with respect to the quantum of evidence required to establish corroboration in law." DiFrisco, supra, 118 N.J. at 273. We believe that the foregoing is independent proof of facts or circumstances, and of loss or injury, as to the charges against defendant. See Lucas, supra, 30 N.J. at 56.

The trial judge's jury instruction directed the jury to determine the credibility and trustworthiness of the confession as an added safeguard. See State v. Roach, 146 N.J.208, 229, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). As such, we find that there is no danger defendant was convicted "out of his own mouth" of a crime committed by another. SeeState v. Sylvester Johnson, 31 N.J.489, 502-03 (1960).

III.

Next, we address whether the judge erred in admitting the transcript of defendant's confession into evidence over the objection of defense counsel. When moving to admit the contents, the following exchange occurred between the court and the parties:

THE COURT: Is it the State's intention to attempt to move the statement [into evidence]?

 

[THE STATE]: That's correct.

 

. . . .

 

[DEFENSE COUNSEL]: Your Honor, I did have an opportunity to touch base with my client on that and I gave that a little more consideration from when we discussed that earlier. I don't think I would object to it going into evidence. I think that it's -- if the only reason for it to go into evidence so we can move the matter along a little more quickly or to avoid readbacks and things of that sort, I don't think it's appropriate.

 

THE COURT: Certainly isn't. It's not appropriate for that reason. Not at all.

 

[DEFENSE COUNSEL]: And my sense is the statement was read, we had over an hour and a half worth of meetings to figure out how we were going to do that appropriately, it was read to the jury, the jury heard what was in the statement, I don't think they need to see the statement, I would object to it going in. Or see the transcribed statement I should say.

 

[THE STATE]: If I may, Judge, if this were a situation where this were an English speaking defendant and we took a statement from him, we'd obviously not be in the position we're in now. We would play the tape, let the jury hear it. The tape would have been moved into evidence for that consideration. That's not an option here. That's not an option here so we have the next best option of the transcript, the transcript that someone came to court and testified it's an accurate translation, transcription of what was contained on that tape, a tape undoubtedly we could move into evidence, Judge, but for issues previously discussed. That being the case, Judge, I think it's more than appropriate --

 

In admitting the testimony, the trial judge reasoned that "the foundation testimony relating to the accuracy of the transcript has been properly laid by the State, over the defense objection." This was not in error. In State v. DeBellis, 174 N.J. Super. 195, 199 (App. Div. 1980), we held that:

There was no error in admission into the jury room of transcripts of tape recordings of conversations obtained by the State. The trial judge carefully explained that he was allowing the transcripts into the jury room because as a result of his review he was certain that they were reasonably accurate; witnesses testified they had read the transcripts and they were accurate; defendants did not deny the accuracy; the jury had already seen the transcripts; the jury would find it difficult without the transcripts to know which recordings they wanted to hear; the judge was afraid that he had unintentionally deceived defendants into believing that the transcripts would go into evidence, and the transcripts would help the jury understand the evidence in this lengthy trial. The judge indicated that he would give a limiting instruction to the jury that the transcripts were only a guide to the recordings and that the recordings were the primary evidence.

Likewise, the admission here was not improper nor prejudicial. The State presented both the testimony of the bilingual detective who interviewed defendant and the bilingual transcriber from an independent transcription service to testify that the transcript accurately reflected the contents of defendant's taped statement at trial. A translator also interpreted Detective Abadia's English testimony to defendant in case defendant felt that his testimony was inaccurate. The statement was unable to be admitted in audio form since it was in Spanish. Further, the transcription was not argued by defendant to be inaccurate, and as such, the judge reasonably believed the transcripts to be accurate. We agree with the trial judge that the transcript aided the jury as "a substitute for the tape as primary evidence."

 

 

IV.

 

Defendant's contention that the court issued an erroneous identification charge to the jury is without merit. The trial judge's instruction regarding defendant's right to remain silent was as follows:

As you know, Mr. Acevedo elected not to testify at trial. It is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. That fact should not enter into your deliberations or discussion in any manner at any time. The defendant is entitled to have the jury consider all the evidence presented at trial. He is presumed innocent even if he chooses not to testify.

This instruction, given in 2007, was the model jury charge on "Defendant's Election Not to Testify." The last sentence of this Model Jury Instruction was revised in 2009, after defendant's trial, and it now reads that the defendant "is presumed innocent whether or not he [or she] chooses to testify." Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2009). Defendant asserts that the use of the term "even" by the trial judge was prejudicial and that "[c]harging that the defendant is entitled to the presumption of innocence even if he does not testify unmistakably and inescapably telegraphs the message that the defendant should have testified." We reject this argument.

In the context of a jury charge, plain error requires demonstration of "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). In determining whether an instruction has that capacity, "portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973).

In State v. Dashawn Miller, 411 N.J. Super. 521, 533 (App. Div. 2010), aff'd, 205 N.J. 109 (2011), we denied the same claim that a substitution of the word "even" in place of "whether or not" in the jury charge violated defendant's right to a fair trial. In reference to the same jury instruction given here, the Miller panel stated:

We have no doubt that a jury hearing this clear description could not be confused by use of the word "even" and led to conclude that defendant had an obligation to testify. We recognize that the last sentence of the relevant Model Jury Instruction was revised after defendant's trial and that it now explains that the defendant "is presumed innocent whether or not [he] chooses to testify." Model Jury Charge (Criminal), "Defendant's Election not to Testify" (revised May 4, 2009). Nonetheless, we are persuaded that the charge given in this case, read as a whole, had no capacity to lead the jurors astray. The jurors were clearly directed that they could not consider defendant's decision to leave the State to its proofs in any manner and were not permitted to allow the fact that he did not testify to enter into their deliberations or decision-making at any time.

 

[Ibid. (alteration in original).]

Although we acknowledge that the current model jury instruction eliminates the use of the word "even," its use in defendant's trial did not have the capacity to affect either the jury's consideration of the evidence or the fairness of its verdict.

V.

We turn to consider defendant's contention that the trial judge erred in permitting defense counsel to speak at the hearing regarding defendant's post-trial motion for a new trial. This argument lacks sufficient merit to warrant more than brief comment. R. 2:11-3(e)(2).

At the hearing, when the court requested defendant's former counsel address the motion for a new trial based on ineffective assistance of counsel, he stated:

[Defendant's former counsel]: Your Honor, as you are aware, it's filed pro se. I was not aware that the motion was filed myself. As I understand the motion, the issue[] that Mr. Acevedo has argued is essentially that there was not -- there was ineffective assistance of counsel in that certain witnesses were not called at trial that could have been called and would have, I guess, purportedly helped his position.

 

And then secondarily, that the decision of the jury to convict on all but the one most serious charge was against the weight of the evidence.

 

With respect to the first issue, Your Honor, I don't know that at this point I can take a position on that. It's suggesting that I made some mistakes at the trial level. I think that that's more of an appropriate position taken to a PCR or on appeal. And you'd have to argue the standard and all of that. For me to take a position, I'd have to basically defend myself on that. And Your Honor has read Mr. Acevedo's papers. I would just as soon let the papers stand on their own. I didn't join in the motion. I didn't file the motion.

Defendant responded by making his allegations clear to the court and former counsel briefly rebutted why these allegations were incorrect in his opinion. The trial judge then denied the motion, not because of trial counsel's remarks at the hearing but because the motion was filed untimely and the weight of the evidence against defendant was overwhelming.

Defendant now argues that the court should have appointed a lawyer to investigate the ineffectiveness of counsel claims and requests a remand so new counsel may be appointed to investigate. As to the substantive argument of ineffective assistance of counsel, "in order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When evaluating an ineffective assistance claim, "'[j]udicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)).

Where a party claims that counsel was ineffective for failing to call witnesses, that party's claim will be dismissed if the "witnesses have never been identified and their potential testimony has never been described. The case law makes clear that such purely speculative deficiencies in representation are insufficient to justify reversal." State v. Fritz, 105 N.J. 42, 64 (1987). Moreover, the quality of counsel's representation cannot be fairly assessed by focusing on a handful of issues ignoring the totality of counsel's performance in light of the State's evidence of guilt. State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

At the hearing, defendant baldly asserted that his former counsel was ineffective. He did not give the names of any witnesses that former counsel failed to call, he could not corroborate his allegation that former counsel never visited him and it was pointed out that there was a pretrial conference explaining to defendant the possibility of trial, which negates his argument that former counsel told him there would not be a trial. In giving requisite deference to former counsel's judgment and in light of the State's evidence of guilt, former counsel's conduct did not fall below the range of reasonable competence.

We note that "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992); see also State v. Dixon, 125 N.J. 223, 262 (1991). As such, our disposition of this argument should not preclude defendant from filing a petition for PCR alleging ineffective assistance of counsel.

VI.

We next examine defendant's challenge that his sentence is excessive. "[W]hen reviewing a trial court's sentencing decision, '[a]n appellate court may not substitute its judgment for that of the trial court.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Sheldon Johnson, 118 N.J. 10, 15 (1990)). The sentencing judge's determinations are reviewed with an abuse of discretion standard. See, e.g., State v. Bauman, 298 N.J. Super. 176, 211 (App. Div.) certif. denied, 150 N.J. 25 (1997). Under the Criminal Code, the "unfettered sentencing discretion" of pre-code law has been replaced with "a structured discretion designed to foster less arbitrary and more equal sentences." State v. Roth, 95 N.J. 334, 345 (1984). Thus, we, as a reviewing court, must make sure that the sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on competent, credible evidence, and decide whether application of the guidelines makes a particular sentence clearly unreasonable. Id. at 364-65.

In sentencing defendant on the convictions for first-degree robbery and second-degree burglary, the trial judge applied aggravating factors one ("nature and circumstances of the offense"); two ("gravity and seriousness of harm inflicted on the victim"); three ("risk that the defendant will commit another offense"); six ("extent of the defendant's prior criminal record and the seriousness of the offenses"); seven ("committed the offense pursuant to an agreement") and nine (need for deterrence). See N.J.S.A. 2C:44-1(a). The court found no mitigating factors.

Defendant contends that the judge's consecutive sentences as to the first-degree robbery and second-degree burglary were excessive and premised upon "fundamental misunderstandings concerning the jury's verdict and on numerous unsupported aggravating factors and neglected to apply an applicable mitigating factor."

Defendant was sentenced before the court as a co-conspirator in the robbery that resulted in serious bodily injury to Officer Rodgers. In turn, in applying aggravating factor number one, "nature and circumstances of the offense," the trial judge stated that:

[Y]ou were a look-out for Kelvin Rosa, the person who was obsessed with shooting a law enforcement officer and you knew Mr. Rosa was armed. Officer Rodgers may not have been shot but for your involvement with Mr. Rosa in this case.

In applying aggravating factor two, "the gravity and seriousness of the harm inflicted on the victim," the judge relied on Officer Rodger's victim impact statement regarding the gravity of the harm inflicted due to the shooting. Given that the officer's statement evinced the emotional and physical trauma he endured and the fact that defendant was a lookout for the armed shooter, the judge reasonably weighed the aggravating and mitigating factors, with support from substantial credible evidence in the record.

Next, we reject defendant's argument that the aggravating factors do not apply to the second-degree burglary sentence because UCC was the victim of that burglary. The manner in which the burglary was committed -- armed, where a person suffered serious bodily injury -- resulted from both the armed robbery and the burglary. As such, applying the aggravating factors to both charges was reasonable.

Finally, defendant challenges the imposition of the consecutive term sentences aggregating to thirty years with a ten-year period of parole ineligibility. Trial courts should explain why they are choosing to either impose a consecutive or concurrent sentence. State v. Abdullah, 184 N.J. 497, 515 (2004). Our Supreme Court instructs that when trial courts impose either a concurrent or consecutive sentence, "'the focus should be on the fairness of the overall sentence[.]'" Id. at 515 (quoting State v. John Miller, 108 N.J. 112, 122 (1987)). In imposing the consecutive sentences here, the trial court reasoned, in part:

There is no worse crime than shooting a law enforcement officer. Once that type of crime is permitted, society has no legal boundaries. No legal limitations. Lawlessness of that nature cannot be tolerated and you shall be sentenced to the maximum sentence as permitted by law based upon the jury's verdict.

 

. . . .

 

On count three, the second degree charge of the burglary of United Check Cashing Service, there are clearly two separate victims in this case, Officer Rodgers is one victim and the United Check Cashing Service is another victim. A consecutive sentence must be imposed under this factual circumstance. New Jersey's jurisprudence looks to the nature of the crimes with overwhelming principle being that there are no free crimes.

With respect to consecutive terms, the Court in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct 1193, 89 L. Ed. 2d 308 (1986), held that "there can be no free crimes in a system for which the punishment shall fit the crime[,]" and went on to enumerate certain factors sentencing courts should consider including:

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

 
. . . .

 
(e) the convictions for which the sentences are to be imposed are numerous[.]

 

[Ibid.]

 

We agree with the sentencing judge that the seriousness of defendant's actions and his conviction of robbery, which included the aggravated assault upon Officer Rodgers, coupled with the conviction of burglary on the UCC support the two consecutive sentences. In light of Yarbough, the trial judge was not in error since he made it clear that the two offenses involved two separate victims, the sentence was fair for the crime and that there are no "free" crimes.

Our review of the sentencing transcript discloses that the judge summarily imposed $5,000 in restitution to reimburse the store owner for the deductible on his insurance policy. New Jersey requires that before a court can impose a fine or restitution it must determine "'if the defendant is able, or given a fair opportunity to do so, will be able to pay the fine or make restitution, or both.'" State v. Newman, 132 N.J. 159, 169 (1993) (quoting N.J.S.A. 2C:44-2(b)).

Defendant does not challenge that the $5,000 amount awarded for restitution represents the insurance deductible. Defendant's only challenge to restitution is the opportunity for a hearing to determine his ability to pay, including a determination of whether the assessment should be divided between his co-defendants. N.J.S.A. 2C:44-2(c). We find the sentencing transcript devoid of any mention of defendant's financial resources and/or his likely future earnings besides mentioning that defendant has no employment history.2 Nor does the presentence report contain any information pertaining to defendant's ability topay. Since the record does not reflect any inquiries into defendant's ability to pay the fine and the amount of restitution does not seem to be in dispute, we remand for a restitution hearing limited to whether defendant presently or in the future will or should be able to pay the amount ordered. See State ex rel. R.V., 280 N.J. Super. 118, 124 (App. Div. 1995).

Finally, defendant received a five-year period of parole supervision on the first-degree robbery conviction under count five and a consecutive three-year period of parole supervision on the second-degree burglary conviction under count three. The State concedes that the current state of law in New Jersey renders consecutive periods of parole supervision illegal. See State v. Friedman, 413 N.J. Super. 480, 491 (App. Div.) ("[g]iven the penal statute we construe and the requirement that the period of parole supervision commence 'immediately' after release from prison, we hold that the mandatory periods of parole supervision on consecutive NERA sentences must be served concurrently."), certif. granted, 204 N.J. 39 (2010).

We affirm the conviction and sentences, with the exception of remanding to correct the judgment of conviction to reflect concurrent, not consecutive, terms of parole supervision, and for a restitution hearing.

Affirmed in part and remanded in part.

 

 

 

1 Defendant does not speak English and was provided with court interpreters.

2 At the sentencing hearing, the judge simply stated, "You have no employment history to speak of. You have four children with four different women. The U.S. Immigration authorities have a detainer against you."