STATE OF NEW JERSEY v. ANGEL R. LOBO

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5888-06T45888-06T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ANGEL R. LOBO,

Defendant-Respondent.

________________________

 

Submitted February 4, 2008 Decided

Before Judges Lintner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-10-00106.

Anne Milgram, Attorney General, attorney for appellant (Lora Glick, Deputy Attorney General, of counsel and on the brief).

Fusco & Macaluso, attorneys for respondent (A.J. Fusco, Jr., of counsel; Paulette L. Pitt, on the brief).

PER CURIAM

The State appeals from a sentence of five years' probation imposed on defendant Angel Lobo on June 15, 2007. For the reasons that follow, we reverse and remand.

Some procedural history is necessary. Defendant entered a guilty plea to a count of second-degree health care claims fraud, N.J.S.A. 2C:21-4.3(c), on September 11, 2003. In exchange, the State recommended that defendant be sentenced as a third-degree offender, pursuant to N.J.S.A. 2C:44-1(f)(2), to a three- to five-year term of imprisonment, at the sentencing judge's discretion. The State also agreed not to oppose defendant's immediate application into the Intensive Supervision Program (ISP). Those convicted of second-degree crimes are typically required to wait six months before applying to ISP. N.J.S.A. 2C:43-11(b). Pursuant to the plea agreement, defendant forfeited his license to practice medicine in New Jersey and New York, paid restitution of $1,195.68 to an insurance company, paid $50,000 of a $100,000 civil insurance fraud penalty in accord with the Insurance Fraud Prevention Act and agreed to a monthly payment schedule on the balance owed and otherwise satisfied mandatory statutory penalties and assessments. N.J.S.A. 17:33A-1 to -14. Defendant was sentenced in accord with the agreement to a three-year term of imprisonment on February 14, 2005. Bail pending appeal was granted to defendant.

The nearly eighteen-month delay between the plea and sentencing was apparently occasioned by evidentiary hearings conducted in 2004 on defendant's application seeking to overcome the presumption of incarceration attendant to his guilty plea to a second-degree offense. N.J.S.A. 2C:44-1(d). Defendant, who is seventy-five years old, claimed that his deteriorating health, including Alzheimer's disease, made his sentence of imprisonment a serious injustice. He claimed that this injustice would overcome the presumption of imprisonment and thus permit the court to sentence him to a term of probation. See State v. Jabbour, 118 N.J. 1, 7 (1990).

On December 22, 2004, the sentencing judge declined to sentence defendant to probation on the asserted medical grounds. On February 14, 2005, he was therefore sentenced to a three-year term of imprisonment as called for in the plea agreement.

Defendant subsequently filed an appeal of the sentence as well as a motion. Through this motion he sought to supplement the record and to expand the time in which medical records could be supplied on appeal. On May 30, 2006, we entered an order on the motion remanding the matter to the trial court for reconsideration based on defendant's medical condition. The following month we dismissed the appeal as moot due to the earlier remand.

We do not have a transcript of the proceeding, but it appears that on September 14, 2006, the sentencing judge conducted an evidentiary hearing on the remand at which at least one of defendant's experts testified. Updated medical reports were admitted into evidence. The sentencing judge conducted oral argument on November 17, 2006, and the decision on the application was reserved.

On March 23, 2007, the sentencing judge rendered a decision from the bench either granting defendant's motion to overcome the presumption of incarceration or resentencing defendant. However characterized, the outcome of the proceeding was that the court agreed defendant should be sentenced to probation. Thereafter, on June 15, 2007, defendant was sentenced to five years' probation, conditioned upon six months of house arrest. The State then sought a stay pending appeal. Again, we are constrained to reverse and remand.

The State urges that the sentencing judge erred in his conclusion that defendant's health made his imprisonment a serious injustice such as to overcome the statutory presumption of incarceration. The State further contends that defendant's sole option is application for early release, pursuant to the medical parole statute, N.J.S.A. 30:4-123.51c. We will not reach either issue as the sentencing judge did not make sufficient findings of fact regarding the credibility of expert witnesses, the weight he accorded their testimony, or for that matter, as to any of the testimony presented on September 14, 2006. Neither did he make findings of law which sufficiently explained how defendant met his burden of establishing not just that imprisonment would be a serious injustice but also that the injustice would override the need to deter others. See State v. Evers, 175 N.J. 355, 386-401 (2003).

As a general matter, "[d]etailed findings . . . should be given by the trial court, not only for our use in the event of an appeal, but for the parties' review so that they can consider the court's sound reasons for reaching a fair result." Tronolone v. Palmer, 224 N.J. Super. 92, 104 (App. Div. 1988). It is clear that the judge considered the testimony of defendant's expert, Dr. Barnett, as well as his expert report. The judge, however, did not explain why he found Dr. Barnett's medical opinions on this second occasion to be of greater weight than that of the State's expert, Dr. Witt. The judge mentions a new evaluation, a subsequent report and additional medical records, but does not explain why the information changed his mind from his prior decision. We cannot discern the reason this material caused the judge to reverse himself.

The absence of findings of fact and conclusions of law, in every proceeding, do "'a disservice to the litigants, the attorneys and the appellate court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)).

In a sentencing proceeding, a judge is obligated to state the factual and legal basis that supports his sentencing decision. State v. Natale (Natale II), 184 N.J. 458, 488 (2005); R. 3:21-4(g). The obligation to clearly articulate reasons for a sentence is of particular importance where the presumption of incarceration is found to be overcome, as was the case here. See e.g., State v. Hartye, 105 N.J. 411, 420 (1987). That obligation was not met.

We remand so that the sentencing judge can make detailed findings of fact as to the credibility, the weight accorded to the testimony, the weight accorded to specific medical episodes, if any, and the like. We further direct that the judge clarify his legal conclusions. The resentence of June 15, 2007, is hereby accordingly vacated.

Reversed and remanded.

 

(continued)

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A-5888-06T4

April 4, 2008