STATE OF NEW JERSEY v. JONATHAN GERARD WHEELER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5390-04T45390-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JONATHAN GERARD WHEELER,

Defendant-Appellant.

_____________________________

 

Submitted: September 19, 2007 - Decided October 30, 2007

Before Judges Cuff, Lihotz and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-10-1347.

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

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of aggravated manslaughter, contrary to N.J.S.A. 2C:11-4a (count one); possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count two); and unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (count three). At sentencing, counts two and three merged with count one, and defendant was sentenced to twenty years imprisonment subject to an 85% No Early Release Act (NERA) parole ineligibility term. The judge also imposed a restitution award against defendant in the amount of $25,000, a $1000 VCCB penalty, a $75 Safe Neighborhood assessment, and a $30 Law Enforcement Officers Training and Equipment Fund penalty.

The events leading to the death of James "Peanut" Anderson in the early morning hours of May 29, 2002, on the streets of Passaic commenced in April 2002. At that time, Romaine York was a close friend of Anderson. York managed a nightclub in Passaic that Anderson frequented. York was also a drug dealer. Through Anderson, York met a group of men from Pittsburgh in the market for a sizeable quantity of drugs. The group was referred to as the Pittsburgh Crew. Co-defendant Tremayne Laman Briston, also known as "Fat Boy" and "Munch," was a member of the group and met with York several times during April and May 2002.

The quantity of drugs sought by the Pittsburgh Crew exceeded the amount that York customarily was able to acquire. From the record it appears that Briston advanced York money to acquire the drugs. York insisted that the money was stolen from him when he and Anderson went to Newark to buy the drugs. York also insisted that he had been shot in the leg during the robbery. The Pittsburgh Crew suspected that York had stolen the money advanced by them.

By the end of May, Anderson sought to borrow $10,000 from York to repay the Pittsburgh Crew. York agreed to loan him the money. Anderson had been contacted earlier in the evening of May 28 by his brother, Ronald, at the behest of Briston. According to Ronald, Briston was accompanied by three men from the Pittsburgh Crew, Briston was not "bad-mouthing" Anderson, and did not seem to be in an aggressive mood or carrying any weapons.

Tyrone Sanders was at the T & L Lounge on Main Avenue in Passaic that evening and saw the Pittsburgh Crew. Briston asked him if Anderson had been robbed in Newark. According to Tyrone, Briston told him to call Anderson and tell him that his family was in danger if he did not bring the money that Anderson owed him. Tyrone was not able to speak to or leave a message for Anderson.

At approximately 12:30 a.m. on May 29, 2002, York met Anderson and Victor Sanders, a brother of Tyrone, in Passaic. York, clothed in a bullet proof vest, had the money and carried a .40 caliber gun loaded with nine bullets. The three men drove to the T & L Lounge.

Briston and some of "his people" were outside the lounge. Briston and Anderson met, talked, and Anderson tried to give Briston the money. Briston, however, was angry that Anderson had not returned his phone calls. York overheard Briston say to Anderson, "I beat two homicides, I'll beat this one, too." Briston then grabbed a black .40 caliber gun from a "short dude" standing next to him, pointed it at Anderson and said, "I'm going to blow your mother fuckin' head off."

York tried to explain that they had been robbed and showed Briston where he had been shot. York also told Anderson that they should cross the street and join Victor Sanders at the gas station. At that point, Briston started to shoot.

When the shooting commenced, Anderson ran to the left and York ran to the right. York saw defendant across the street standing between a van and a car. According to him, Briston, defendant, the "short dude," and a man known as "Hit Man" were shooting guns. "Hit Man" was standing in the parking lot of the lounge.

York ran from the scene. As he did so, he observed a flash from a gun by the car and van where defendant stood. Victor Sanders, who had crossed the street before the shooting erupted, testified that he saw defendant near a van and firing a weapon. Sanders also saw Briston shooting at Anderson. Sanders left the scene when a rifle he was carrying jammed as he tried to fire it.

When Sanders returned to the scene, Anderson was lying in front of two cars in front of the gas station. By the time York returned to the scene, Anderson was being placed into an ambulance. No one from the Pittsburgh Crew was in the area. Anderson was taken to Passaic General Hospital where he died.

The police found Anderson lying face up in front of the gas station at 901 Main Avenue, across the street from the T & L Lounge. The body was partly on the sidewalk and partly in the street.

The police retrieved a black .38 caliber revolver about two feet from the victim's body, underneath a white Toyota parked in the gas station. The gun was closer to Anderson's left hand and contained three live bullets and one spent casing.

The police also retrieved eleven .40 caliber shell casings from the parking lot of the T & L Lounge. No casings were found in the street. A projectile was found in front of the white Toyota. That car also had what appeared to be a bullet hole in the driver's side door, and there appeared to be blood by the car. Other projectiles were found near the gas pump and in front of the gas station, and the gas pump appeared to be damaged. In addition, a projectile was found lodged in the entranceway of 901 Main Avenue and there were suspected holes in the wall.

No spent shotgun or assault rifle shells were found at the scene, and no nine-millimeter shells were found. No shells were found by the victim's body.

According to Detective Nelson Carrasquillo of the crime scene investigation unit of the Passaic County Sheriff's Department, an automatic weapon, such as a .40 caliber, ejects its casings after it is shot, whereas a revolver, such as a .38 caliber, retains its casings. The detective could not determine how many weapons were used to fire the eleven casings found at the scene.

It was stipulated that Anderson died from multiple gunshot wounds. Specifically, he had: a gunshot wound to the head that entered from the back and exited through the front; a gunshot wound to the back that entered in the midback area and exited through the upper chest; a gunshot wound to the hip that entered on the right hip and exited at the top of the buttocks; a gunshot wound to the left leg that entered from the outside of the leg and exited from the inside of the leg; and a gunshot graze wound to the left palm. All gunshots had exited the body; therefore, there were no projectiles inside the body. There was also no evidence of powder or stippling in any of the wound sites.

Based on the statements given to the police by York, Victor and Tyrone Sanders, and Ronald Anderson, four men were taken into custody on June 10, 2002--defendant, Briston, and two other individuals.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL JUDGE CONCLUDED THAT THE UNINDICTED RECKLESS FORMS OF HOMICIDE WERE NOT CLEARLY INDICATED BY THE EVIDENCE. NEVERTHELESS, OVER DEFENDANT'S OBJECTION, THE JUDGE INSTRUCTED THE JURY TO CONSIDER AGGRAVATED AND RECKLESS MANSLAUGHTER. ACCORDINGLY, DEFENDANT'S CONVICTION OF AGGRAVATED MANSLAUGHTER MUST BE REVERSED AND, HAVING BEEN ACQUITTED BY THE JURY OF MURDER, COUNT ONE OF THE INDICTMENT MUST BE DISMISSED.

POINT II

DEFENDANT'S MANSLAUGHTER AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO REVIEW THE RECORD TO DETERMINE WHICH JURY CHARGES WERE CLEARLY INDICATED, AND CONSEQUENTLY, FAILED TO INSTRUCT THE JURY ON SELF-DEFENSE AND THEREBY DENIED DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below).

A) A Self-Defense Instruction Was Required In Relation To The Offenses Of Murder And Manslaughter.

B) A Self-Defense Instruction Was Required In Relation to The Offense Of Possession Of A Weapon For An Unlawful Purpose.

POINT III

THE TRIAL COURT'S "FLIGHT" CHARGE WAS INCORRECT AND NOT SUPPORTED BY ANY EVIDENCE, THEREBY DENYING DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).

POINT IV

THE COURT ERRED IN ADMITTING HIGHLY PREJUDICIAL AND INADMISSIBLE TESTIMONY AS RES GESTAE EVIDENCE.

POINT V

THE PROSECUTOR MADE A SUBSTANTIAL MISSTATEMENT OF FACT IN SUMMATION DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. U.S. Const., Amends. V, VI, XIV; N.J. Const. Art. I, Para. 10. (Not Raised Below).

POINT VI

THE RESTITUTION ORDER OF $25,000, JOINT AND SEVERAL LIABILITY, SHOULD BE REVERSED AND THE MATTER REMANDED FOR A HEARING ON DEFENDANT'S ABILITY TO PAY AND A DETERMINATION OF HIS SPECIFIC PROPORTIONATE LIABILITY. U.S. CONST. AMENDS. XIV; N.J. CONST. ART. I, 1. (Not Raised Below).

A) This Court Should Reject State v. R.V., 280 N.J. Super. 118 (App. Div. 1995), Because It Is Inconsistent With State v. Newman, 132 N.J. 159 (1993) And N.J.S.A. 2C:44-2.

B) The Imposition Of Joint And Several Liability Between Co-Defendants Is Not Authorized By The Code And Should Not Be Used In Criminal Cases Because It Is Incompatible With Rehabilitation, A Primary Goal Of Restitution. The Better Practice Would Be For The Sentencing Judge To Set Each Defendant's Specific Proportionate Liability.

POINT VII

THE SENTENCE IMPOSED IN THIS CASE IS MANIFESTLY EXCESSIVE.

A grand jury indicted defendant with one count of knowing and purposeful murder and other charges. Over defendant's objection, the trial judge charged the jury on the lesser included offenses of aggravated manslaughter and reckless manslaughter. Defendant contends that the evidence did not clearly indicate that such charges should have been delivered and that he is entitled to a new trial. We disagree.

Defendant was tried with Briston, who requested the lesser included offense charges. Defendant objected. The trial judge held that he should charge the lesser included offenses as requested by Briston because "by the barest of evidence, some reasonable, rational basis for giving these charges within the factual framework within which this case has been presented."

The judge then proceeded to charge the jury on murder, aggravated manslaughter, reckless manslaughter, and the principles of accomplice liability. The jury found defendant and Briston guilty of aggravated manslaughter. Defendant does not cite any error in the charge as delivered; he contends that the evidence did not clearly indicate that such a charge should have been delivered as to him.

N.J.S.A. 2C:1-8(e) provides that a judge should not charge a jury on a lesser included offense unless there is a "rational basis" in the evidence to convict on that lesser included offense. There must also be a rational basis in the evidence for the jury to acquit the defendant of the charged offense. State v. Brent, 137 N.J. 107, 113-14 (1994).

When confronted with the decision whether to charge a lesser included offense, the trial judge applies a different standard based on whether the defendant has requested such a charge. State v. Savage, 172 N.J. 374, 396-97 (2002). If the defendant requests a lesser included charge, the trial judge must examine the record to determine if there is a rational basis to convict the defendant of the lesser included offense and to acquit him of the greater offense. Id. at 397. If the defendant has not requested a lesser included charge, the trial judge may deliver such a charge only when the evidence clearly indicates that such a charge is appropriate. Ibid. Accord State v. Jenkins, 178 N.J. 347, 361 (2004); State v. Choice, 98 N.J. 295, 298 (1985).

Here, the trial judge applied the proper test to Briston's request to charge aggravated manslaughter and reckless manslaughter as lesser included offenses to murder. He did not apply, however, the appropriate test in his determination of the State's request to deliver a lesser included offense charge over defendant's objection. Nevertheless, we find no error because our examination of the evidence reveals that such a charge was clearly indicated.

Criminal homicide constitutes aggravated manslaughter when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a(1). Criminal homicide constitutes manslaughter when "[i]t is committed recklessly." N.J.S.A. 2C:11-4b(1). To be guilty of aggravated manslaughter, a defendant must be aware of and consciously disregard a probability of death. Jenkins, supra, 178 N.J. at 363. If the defendant disregards only a possibility of death, the crime is reckless manslaughter. Ibid. A defendant's awareness of the probability or practical certainty of death may be inferred from the circumstances and his conduct. State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.), certif. denied, 185 N.J. 264 (2005).

The evidence in this case clearly indicated that defendant was actively involved in the shooting that took the life of Anderson and provides factual support for a charge of aggravated manslaughter and reckless manslaughter. York testified that defendant was standing across the street from the T & L Lounge between a van and a car. As York fled the scene, he observed the flash from a gun from the spot where defendant was standing.

Victor Sanders had crossed the street to get cigarettes at the gas station when Anderson and Briston started to talk to each other. When the shooting started, he took refuge behind a gas pump and from that location he saw defendant standing near a van and firing a gun.

Police retrieved shell casings from the parking lot of the lounge. They also recovered shell casings from and near a car parked at the gas station, near the gas pump, and in front of the gas station. Defendant had been observed on the gas station side of Main Avenue.

To be sure, all of the State's witnesses had past and current behavior and relationships that could undermine their credibility. York was a drug dealer. He had been shot in the leg but admitted that when he sought treatment he stated that he was the victim of a robbery in his barber shop. Further investigation revealed there was no barber shop at the location given by York. York also had prior convictions for possession of drugs and weapons, and he had charges pending against him at the time of trial for possession of drugs and weapons and murder for hire.

Victor Sanders also admitted that he had prior convictions for burglary and drug possession and that he had charges pending against him for possession of drugs and weapons. He denied that he expected favorable treatment by testifying against defendant and Briston. He also denied that on the night of the shooting he was trying to become a gang member and commission of an act of violence was part of his initiation. Tyrone Sanders, who testified that Briston had threatened Anderson the night of the shooting, also had prior convictions for possession of drugs and theft.

Whether York, Victor and Tyrone Sanders provided credible evidence regarding the shooting was a question for the jury to resolve. State v. Samuels, 189 N.J. 236, 251 (2007). If the jury accepted their testimony, defendant was a member of a group who believed that the victim had stolen a sizeable amount of money from them. Defendant was seen in the place where a gun had been fired. He fired a gun after his colleagues on the other side of the street commenced firing at York and Anderson. Shell casings were found on the side of the street where defendant was standing and where Anderson was found with multiple gunshot wounds. This is sufficient evidence from which a jury could conclude beyond a reasonable doubt, and a trial judge could find, that the evidence clearly indicated that defendant fired a weapon with extreme indifference to human life or did so recklessly.

While defendant objected to the lesser included charges of aggravated manslaughter and reckless manslaughter, he urges that the trial judge should have delivered a self-defense charge sua sponte. When a defendant does not submit a request for a self-defense charge, and does not object to its absence, he is entitled to a new trial only if he can show plain error. State v. Vasquez, 265 N.J. Super. 528, 548-49 (App. Div.), certif. denied, 134 N.J. 480 (1993); R. 1:7-2; R. 2:10-2. In the case of a homicide, to avail himself of self-defense, the killer must be free from fault in bringing about the conflict and must reasonably, although not correctly, believe that his victim would, unless forcefully prevented, immediately inflict serious bodily injury on him, and that deadly force must be used to prevent such injury. State v. Perry, 124 N.J. 128, 161 (1991) (citing State v. Bowens, 108 N.J. 622, 628 (1987)).

Certainly there is evidence that supports a finding that defendant and his colleagues were not the only persons armed that evening or the only persons who fired their weapons. There is also evidence that defendant commenced firing only after Briston fired his weapon. On the other hand, the defense fashioned by defendant, as represented by his attorney's closing argument, was that he had been set-up or framed by York, not that he fired at Anderson or anyone else in self-defense. In fact, defendant argued that York fired the shots that hit Anderson and that the shooting of Anderson by York was not an accident. In other words, defendant fashioned a defense that he was not the shooter, rather than that he shot and fired because he believed that deadly force was required to repel Anderson's deadly assault. Under these circumstances, we cannot find that the trial judge erred by omitting this charge, and certainly we cannot find that the omission must be considered plain error.

Defendant also contends that the trial judge should not have delivered a flight charge because there was insufficient evidence to support this charge. Defendant raises this issue for the first time on appeal; therefore, we must apply the plain error standard. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). Measured by this standard, we find no error much less plain error.

When York and Victor Sanders returned to the scene, the Pittsburgh Crew had left. There was evidence that they were armed drug dealers from out-of-town, who had engaged in a shooting with local drug dealers believed to have stolen money from them. This is adequate evidence from which a jury could conclude that they left the scene to avoid arrest.

Defendant also argues that the trial judge should not have allowed York to testify that Briston remarked that he had "beat two homicides" in the past. He contends that this remark should have been excluded as other crimes evidence in accordance with N.J.R.E. 404(b). The trial judge ruled that the remark was admissible as "res gestae" evidence. That is, the remark was part of the mosaic of the criminal event and directly related to the criminal behavior on that evening. State v. Long, 173 N.J. 138, 157-58 (2002). We agree.

Evidence of conduct occurring during the same time frame as the instant crime should not be excluded if the evidence establishes the context of the criminal event, explains the nature of it, or presents the full picture of the crime to the jury. State v. Martini, 131 N.J. 176, 241-42 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995); State v. L.P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 205 (2001); State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). In addition, there is no need to instruct the jury on the limited uses of such evidence when the uncharged conduct is admitted as part of the res gestae of the crime. State v. L.P., supra, 338 N.J. Super. at 235.

We note that the remark implicated only Briston in two prior homicides. Moreover, the trial judge delivered a limiting instruction following York's testimony in which he advised the jury that the statement was not offered for its truth. He also informed the jury that Briston had not been charged, tried or convicted of murder in any jurisdiction. He then stated that the remark was offered "solely for the purpose of presenting a full picture to the jury of what is claimed to have transpired at the time of the alleged event, murder, to establish a context in which these events take place." The judge also informed the jury that it could consider the statement for other purposes, such as intent and motive.

The trial judge reiterated this cautionary instruction during the general jury charge at the conclusion of the trial. He also advised the jury that it should cautiously evaluate oral statements reported by others when it considered the credibility of York.

Here, the statement was an integral part of the events leading up to the shooting. Moreover, the stipulation concerning the lack of a prior homicide charge, as well as the extensive instructions to the jury about the proper use of this statement, minimized any collateral damage the statement may have caused defendant.

Defendant also contends for the first time on appeal that the prosecutor supplied the jury with information in his summation that was outside of the record. He asserts that this misstatement requires a new trial. Although we agree that the prosecutor should not have referred to facts not contained in this record, we do not find that the remark was so egregious to require a new trial.

In the course of his summation, the prosecutor attempted to rebut the argument of defendant's attorney that the flash that York saw was from Anderson's weapon. The prosecutor argued that Anderson did not fire his weapon that evening and that the autopsy report supported this contention. He explained that "if someone fired that gun, there would be powder or stippling on the shooter's hand," but none was found on the victim's hand. Defendant never objected to this remark; Briston's attorney objected the next day. The objection was overruled.

The autopsy report did not support the comment made by the prosecutor regarding powder burns on the victim's hand. On the other hand, the conduct is not so egregious that it deprived defendant of a fair trial. State v. Smith, 167 N.J. 158, 181 (2001); State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Here, the autopsy revealed no powder burns at the site of the victim's various wounds. The prosecutor certainly could argue to the jury that no powder burns would have been expected because defendant did not fire from close range. The evidence did not allow him, however, to argue that the victim did not fire a weapon because there was no evidence of powder or residue on his hands. The evidence also provides no factual basis for this argument to be considered fair comment.

This unsupported argument, however, does not require a new trial. There was other evidence from which the jury could find that defendant was in fact one of the shooters and was in a place from which one of the shots fired by his weapon could have struck the victim. Moreover, by failing to lodge a timely objection, defendant deprived the trial judge of the opportunity to promptly review the objection and cure any misstatement. State v. Johnson, 216 N.J. Super. 588, 609-10 (App. Div.), certif. denied, 107 N.J. 647 (1987).

Defendant is serving a twenty-year term of imprisonment subject to an 85% parole ineligibility term. The judge also imposed a $25,000 restitution award. Defendant argues that the sentence is excessive and that the trial judge failed to consider his ability to pay the restitution award.

In fashioning the sentence, the trial judge stated that he thought it was appropriate for him to consider the role defendant played in the shooting and the evidence he heard. The judge, however, never expressly articulated what role he believed defendant played in the shooting. He then identified aggravating factors one, two, three, six, and nine. N.J.S.A. 2C:44-1a(1), (2), (3), (6), and (9). The judge also identified mitigating factor five, N.J.S.A. 2C:44-1b(5), finding that the victim's conduct induced the offense. Defendant argues that aggravating factor one is not supported by the record and aggravating factor two is inapplicable.

N.J.S.A. 2C:44-1a(1) allows a judge to consider the nature and circumstances of the offense and the role of the defendant as an aggravating factor, particularly whether the offense was committed in an especially heinous, cruel or depraved manner. The judge did not specifically delineate defendant's role in the shooting or what features rendered the shooting especially heinous, cruel or depraved. To be sure, this was a brazen street fight with guns blazing on a street in a commercial area of Passaic. No one, however, was involved other than the participants in an aborted drug transaction. In other words, no innocent bystanders were struck or ever in danger. The conduct was utterly inappropriate to settle the dispute that arose between two groups of admitted felons but the conduct was not especially cruel, heinous or depraved. See State v. O'Donnell, 117 N.J. 210, 217-18 (1989) (factor satisfied when the defendant utilizes a method of beating designed to increase the victim's pain).

Moreover, in this situation the use of aggravating factor one and aggravating factor two, which considers the gravity and seriousness of the harm inflicted, violates the rule against double counting. When death is an element of the offense, as in aggravated manslaughter, the fate of the victim cannot be used as an aggravating factor. State v. Carey, 168 N.J. 413, 424 (2001); State v. Jarbath, 114 N.J. 394, 404 (1989). The record is also devoid of other facts, such as the particular vulnerability of the victim or his incapacity to resist, that would trigger this aggravating factor. See N.J.S.A. 2C:44-1a(2).

The record suggests that aggravating factors one and two were given significant weight by the judge. Having found that neither factor was appropriate in this case, we remand for reconsideration of the sentence. The judge must also conduct a hearing on defendant's ability to pay restitution and the appropriate terms and conditions of any restitution award.

The victim's mother requested restitution for the support of the victim's three minor children. Defendant's attorney noted that defendant had no assets and further contended that any award should be shared equally by Briston. The trial judge considered the requested award modest, if not nominal, and ordered that defendant and Briston pay $25,000 jointly and severally. In addressing defendant's ability to pay, the judge observed that he may acquire or inherit funds in the future.

N.J.S.A. 2C:44-2b provides a court "shall" sentence a defendant to pay restitution if: "(1) [t]he victim, or in the case of a homicide, the nearest relative of the victim, suffered a loss; and (2) [t]he defendant is able to pay or, given a fair opportunity, will be able to pay restitution." The amount of the restitution may not exceed the victim's loss. N.J.S.A. 2C:43-3.

The court must hold at least a summary hearing on a defendant's ability to pay. State v. Pessolano, 343 N.J. Super. 464, 478-79 (App. Div.), certif. denied, 170 N.J. 210 (2001). If there is a good faith dispute over defendant's ability to pay or the amount of the loss, a hearing other than a summary proceeding must be conducted. State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994). Furthermore, when the presentence report is devoid of any mention of a defendant's financial resources or the likelihood that he will acquire financial resources in the future, an ability to pay hearing is required. State v. McLaughlin, 310 N.J. Super. 242, 264-65 (App. Div.), certif. denied, 156 N.J. 381 (1998). The hearing allows an award that is grounded in reality, provides a reasonable prediction of future capacity to pay, and does not frustrate the goal of rehabilitation. State v. Newman, 132 N.J. 159, 171-73 (1993).

A judge at such a hearing may consider a defendant's future earning capacity. State in re R.V., 280 N.J. Super. 118, 122-23 (App. Div. 1995); N.J.S.A. 2C:44-2c(2). Consideration of future earning capacity or the ability or likelihood of acquisition of assets in the future involves a prediction of future events, a task fraught with difficulty. If the record demonstrates that the defendant will be able to pay some measure of the amount requested, an award with appropriate terms and conditions may be entered. R.V., supra, 280 N.J. at 124. Notably, in R.V. the court awarded a modest award but this court remanded for a hearing due to the absence of evidence in the record that the juvenile had the present or prospective ability to pay the award. Ibid.

A hearing is required in this case. The presentence report reveals no present ability to pay. Defendant is a high school graduate with one year of college. Although self-employed prior to imprisonment, he had no assets. He also has three children.

On remand, the court should also reconsider its determination that defendant's liability be joint and several with Briston's. Although there is no statutory provision governing restitution that requires joint and several liability among multiple adult defendants, State v. Scribner, 298 N.J. Super. 366, 371 (App. Div.), certif. denied, 150 N.J. 27 (1997), joint and several responsibility may be imposed in the appropriate circumstances. Pessolano, supra, 343 N.J. Super. at 479 n.10.

In Scribner, we held that imposition of joint and several liability, without an examination of an individual defendant's present or future ability to pay, could not be sustained. 298 N.J. Super. at 371-72. Moreover, even a pro rata distribution between defendants of a restitution order must reflect a defendant's ability to pay. Id. at 372. Thus, a finding with respect to a defendant's ability to pay has to precede any imposition of joint and several liability. Ibid.

The conviction is affirmed. The matter is remanded for reconsideration of the sentence and a hearing on the restitution award in accordance with the terms of this opinion.

 

N.J.S.A. 2C:43-7.2.

In the indictment, he was referred to as Raimaine York.

Martini was overruled in part on other grounds, with respect to a death penalty issue, in State v. Fortin, 178 N.J. 540 (2004) and State v. Wakefield, 190 N.J. 397, 423 (2007).

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A-5390-04T4

October 30, 2007