STATE OF NEW JERSEY v. JAMES A. BROADWATER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3593-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES A. BROADWATER, a/k/a

JAMES A. JOHNSON,

Defendant-Appellant.

___________________________________

December 14, 2011

 

Submitted October 13, 2011 - Decided

 

Before Judges Waugh and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-05-1755.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant James A. Broadwater appeals from his conviction, following a guilty plea, for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1), as well as the resulting sentence of incarceration for ten years subject to an eighty-five-percent period of parole ineligibility pursuant to N.J.S.A. 2C:43-7.2. He also appeals the imposition of restitution in the amount of $5047, primarily for the victim's medical expenses. We affirm the conviction and the custodial sentence. However, we vacate the restitution requirement and remand for an ability-to-pay hearing.

I.

We discern the following facts and procedural history from the record on appeal.

On November 13, 2007, two members of the Camden Police Department were parked near the intersection of Broadway and Pine Street when they heard a gunshot. An area resident informed them that there had been a shooting in an alley near Pine Street. The officers went to investigate. One of them saw a black male with a handgun, who then fled on foot. The officers were unable to catch the suspect. The victim subsequently identified Broadwater as the shooter.

Broadwater was arrested that day and taken to police headquarters. Investigator Michael Dougherty of the Camden County Prosecutor's Office attempted to explain to Broadwater his Miranda1 rights so he could conduct an interview. Because Broadwater was "incoherent" and "mumbling," Dougherty decided to postpone the interview.

On November 15, 2007, Dougherty resumed his efforts to interview Broadwater. He explained the Miranda rights to Broadwater, who stated that he understood them. When Broadwater expressed reluctance to give a statement, State Police Sergeant Rick Bumbera told him that he and Dougherty were attempting to ascertain the facts concerning the shooting, so that they could determine whether Broadwater was trying to kill the victim or just to scare him. Bumbera suggested that the nature of the charge would determine the amount of "time" Broadwater would face.

When Broadwater again expressed concern that Dougherty and Bumbera would use the information against him, Dougherty responded:

Is that what, you got to understand something. If you speak to us now, what you do say to us I'm going to take down, and yes, it is gonna be used against you. But the idea is, are you going to say something that may help you or may help explain your actions? Cause other than that, honestly, I already have his side of the story. We already have what went on out there, we have all those facts. We need an explanation from you, why they happened. Look, look I've dealt with cool blooded killers, and I've dealt with shooters that try to kill people, and I don't think you're a cool blooded killer. But is there some explanation as to why this happened? If not, it is what it is, you shot some body down in the street, with no explanation as to why you did it.

 

Dougherty and Bumbera then explained that they had statements from witnesses and the victim, but they wanted to hear Broadwater's version. When Broadwater asked why he should talk to them if they had those statements, Dougherty responded: "We don't know why you did it." He also told Broadwater that they needed the information because they "have to evaluate how somebody is going to be charged" and "work with the prosecutor and determine how you're going to be prosecuted." He told Broadwater that the choices were "attempted murder" or "aggravated assault."

After some further discussion, the following exchange took place:

Q. Inv. Dougherty: You know what I mean, this was a courtesy to you, we said look in all fairness we always try to speak to both sides to get it and the other night when you were here, [you] couldn't even keep your head up to talk to us. If we were, if we were trying to do anything, we would have, that night we would have tried to talk to you. And we said look, that's not fair, this guy is not in the position to be able to talk to us. So we said in fairness to you, we were going to let you sleep, get your head straight and then we would bring you back and give you a chance to explain what happened. Because honestly, I've been doing this for a little while and he's been doing this for a little while, and you got kids you know how it is, it never hurts to say you're sorry, it never hurts to say you're sorry. You know whether you're looking at charges, whether you're looking for what, worried about what your going to as far as time is, we can't tell you that right now, cause no body really knows what went on, nobody know[s] the whole story. But, think about this it never hurts to say you're sorry.

 

A. I don't want nothing recorded or anything.

 

Q. Okay.

 

A. On that recorder, no.

 

Q. There's no tape, hang on, opening it up, there's no tape in there. I walked in with you, did you see him put a tape in there?

 

Q. Sgt. Bumbera: All we're asking you right now, you want to talk to us, you don't want to talk to us, man it's as simple as that, it's as simple as that, bud.

 

A. I don't want nothing recorded like I said.

 

Q. That's fine.

 

A. Them two way mirrors.

 

Q. Oh, yea they are but . . .

 

Q. Inv. Dougherty: Actually, this goes, this goes to right now the locker room it's closed off, that's blocked off. And this I don't, I think the pipes are still back there now.

 

Q. Sgt. Bumbera: I don't know what that is.

 

Q. Inv. Dougherty: I give you my word that there's no body behind these mirrors, I give you my word.

 

A. Great man.

 

Q. You need to sign this [Miranda card].

 

A. Something tells me I'm gonna end up regretting this shit, man.

 

After signing the Miranda card, Broadwater proceeded to tell Dougherty and Bumbera his version of the events of November 13. Despite Dougherty's assurances to the contrary, the entire interrogation was videotaped.

In March 2008, Broadwater was indicted for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count two); second-degree possession of a weapon for unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count three); third-degree unlawful possession of weapons, contrary to N.J.S.A. 2C:39-5(b) (count four); fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count five); and second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(b) (count six).

Broadwater filed a motion seeking suppression of his statement. The motion judge took testimony from Dougherty and Broadwater on October 16, 2008. Dougherty testified about Broadwater's arrest, his initial attempt to question him, and his decision to wait two days before trying again. He admitted that he intentionally deceived Broadwater with respect to the recording of the interview. Dougherty described Broadwater as being "comfortable," "coherent," and "sober" at the second interrogation.

Broadwater testified that, when he gave his statement, he was "still high," that he had had little opportunity to sleep because he was with four others in his cell, and that he felt like he was in "detox." Broadwater related that, during a prior interrogation involving another offense, the investigating officer had turned off the tape recorder as soon as he invoked his right to remain silent under the Fifth Amendment. However, he did not assert that he gave any sort of off-the-record statement after the tape recorder was turned off on that occasion. Broadwater testified that it was his understanding when he gave his statement to Dougherty and Bumbera that what he told them could not be used against him because it was not being recorded. Consequently, he understood that anything he said would be "off the record."

After closing arguments, the judge delivered an oral decision. He found that Broadwater was properly given the Miranda warnings, that he understood those rights, that his demeanor on the video tape of the statement reflected that "his will was not overborne" by the interrogation and that he was not impaired, and that he was also familiar with his rights and interrogations from prior experience. The judge framed the issue for determination as whether Broadwater's waiver of his Miranda rights was "a knowing and voluntary waiver" or whether, "by [Dougherty's] saying it's not being recorded, there's nobody behind that glass," the Miranda waiver was "vitiate[d]" because of "a belief of the defendant that his statement was off the record." The judge determined that Broadwater understood that his statement could be used against him at the time he gave it, and denied the motion.

On August 3, 2009, Broadwater accepted the State's plea offer, which called for him to plead guilty to second-degree aggravated assault. The State agreed to recommend a ten-year period of incarceration, subject to an eighty-five-percent period of parole ineligibility. The remaining charges in the indictment were to be dismissed at sentencing. The judge established that the plea was being made knowingly and voluntarily, and was satisfied that there was a factual basis for the plea.

Broadwater was sentenced on November 6, 2009.2 The judge found aggravating factors three (risk of committing another offense), six (extent of prior record), and nine (deterrence). N.J.S.A. 2C:44-1(a)(3), (6), and (9). He found no statutory mitigating factors. N.J.S.A. 2C:44-1(b). The judge imposed the recommended sentence of incarceration for ten years, subject to an eighty-five-percent period of parole ineligibility. He ordered $5047 in restitution, as well as other required fines and penalties.

This appeal followed.

II.

Broadwater raises the following issues on appeal.

POINT I - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS CONFESSION AS DEFENDANT'S WAIVER OF HIS RIGHT AGAINST SELF-INCRIMINATION WAS NOT MADE KNOWINGLY OR VOLUNTARILY.

 

A. DEFENDANT'S WAIVER OF HIS MIRANDA RIGHTS WAS NOT MADE INTELLIGENTLY AS DEFENDANT WAS DECEIVED INTO BELIEVING THAT HIS STATEMENT WOULD NOT BE USED AGAINST HIM.

 

B. DEFENDANT'S WAIVER OF HIS MIRANDA RIGHTS WAS INDUCED BY THE OFFICERS' THREAT THAT HE WOULD BE CHARGED WITH ATTEMPTED MURDER IF HE DID NOT GIVE A STATEMENT TO THEM.

 

C. DEFENDANT'S WAIVER OF HIS MIRANDA RIGHTS WAS FLAWED AS DEFENDANT WAS MENTALLY EXHAUSTED AND UNDER THE INFLUENCE AND SUFFERING FROM WITHDRAWAL FROM DRUGS.

 

POINT II - THE TRIAL COURT MISAPPLIED THE AGGRAVATING AND MITIGATING FACTORS AND IMPOSED A MANIFESTLY EXCESSIVE SENTENCE.

 

POINT III - THE TRIAL COURT FAILED [TO] ADHERE TO THE REQUIREMENTS OF N.J.S.A. 2C:44-2 IN ORDERING RESTITUTION.

 

We turn first to the issue of whether the trial judge erred in denying the motion to suppress.

A.

In reviewing a trial judge's denial of a Miranda motion, we analyze police-obtained confessions using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003). Nevertheless, we will not engage in an independent assessment of the evidence as if we were the court of first instance, State v. Locurto, 157 N.J. 463, 471 (1999), nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997), but we instead defer to the trial judge's credibility findings. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

A suspect's confession during a custodial interrogation can only be obtained if that suspect was supplied with his or her Miranda rights. Miranda, supra, 384 U.S. at 461, 86 S. Ct. at 1620-21, 16 L. Ed. 2d at 716. Before considering the validity of a waiver of Miranda rights, it must be established that the police scrupulously honored the suspect's rights to remain silent. State v. Burno-Taylor, 400 N.J. Super. 581, 589 (App. Div. 2008). If the suspect's words or conduct, upon being advised of his or her rights, "could not reasonably be viewed as invoking the right to remain silent," this requirement is satisfied and the police may continue their questioning. Id. at 590 (citing State v. Bey, 112 N.J. 123, 136-38 (1988)).

A trial court will admit a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of those rights was knowing, intelligent and voluntary. Patton, supra, 362 N.J. Super. at 42. The court must specifically consider the defendant's "characteristics . . . and the nature of the interrogation," and may include in its consideration the defendant's "age, education and intelligence, advice concerning constitutional rights, length of detention, whether . . . questioning was repeated and prolonged in nature, and whether physical punishment [or] mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973)).

Courts analyze whether police conduct coerced a confession by first determining whether the conduct violated the suspect's due process rights. See State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). New Jersey thus places a "mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence but by the deeper constitutional requirement of fundamental fairness." State v. Driver, 38 N.J. 255, 282 (1962) (citing Smith, supra, 32 N.J. at 544).

A suspect's confession is not considered voluntary if it is the product of psychological or physical coercion. Galloway, supra, 133 N.J. at 654. Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession was the result of the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is "'the product of an essentially free and unconstrained choice'" where the defendant's will has not been "'overborne and his capacity for self-determination [has not been] critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate a showing of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.

B.

Citing our opinions in State v. Pillar, 359 N.J. Super. 249, 266 (App. Div.), certif. denied, 177 N.J. 572 (2003) and State v. Fletcher, 380 N.J. Super. 80, 91-93 (App. Div. 2005), Broadwater argues that his statement should have been suppressed because he only spoke to Dougherty and Bumbera with the understanding that what he told them would be "off the record" and would not be used against him. The State contends that the motion judge correctly determined that Broadwater understood that the substance of the statement could be used against him, although he was misled into believing that it was not being recorded.

The judge explained his reasons for denying the motion to suppress as follows:

In addition, the investigator did clearly and unambiguously, on the tape, testified today, and it's in the transcript, stated quite clearly, after reading the rights and after having a discussion -- beginning of a discussion . . . with [Broadwater] about what those rights were and whether he wanted to waive, he said, ["][Y]ou've got to understand something, if you speak to us now, what you say to us, I'm going to take down and, yes, it's going to be used against you.["] And then he goes on to talk about what his goal is.

 

Clearly, that's unambiguous. I believe with the nature of the interrogation and the level of sophistication of [Broadwater], as well as his prior contact with the system, his age, and education, that he clearly understood his rights and the investigator was very clear and credible in explaining those rights.

 

I found the investigator particularly credible, because when he said . . . [Broadwater] didn't want [the conversation] to be recorded, it [was] because he was afraid it would be used against him. I took that to mean, and [the State] has argued, that a recording would be used against him.

 

It's clear to me, in anybody's mind, that you can try to . . . have it both ways. You can talk in an effort to limit your exposure, but try to do it in such a way that if you cause a problem for yourself, you may be able to argue against it. It's hard to argue against the tape recording, it's hard to argue against a videotape.

 

I have heard from the investigator and counsel did argue, and I think coherently, that he inferred that [Broadwater] did not want a tape recording used against him. The question is whether [Broadwater] testified credibly that when he said ["]I don't want a recoding, I don't want anybody behind the mirror,["] he was, essentially, saying off the record. The same language that's used in FLETCHER and the same language that's used in PILLAR, off the record, those are the buzz words. That was, he claims, his understanding.

 

Let me talk about . . . the way . . . the [S]tate meets its burden in the absence of my satisfaction, at some level, that defendant did believe it was off the record. I had a chance to observe [Broadwater], he testified that he said something about the drugs coming out of his pores and he was still high.

 

Although he does look somewhat tired on the tape, I can't find anywhere in the transcript where there's any reference to his pores, and I can't discern from the tape that there is evidence of him being high on crack and heroin. That did affect his credibility in . . . his testimony today.

 

He also said he was able to bring the drugs into jail and use them while at the jail. I had a chance to observe his demeanor, his manner of speaking, the way he gestured when talking about the use of the crack pipe in jail. By the way, there's no smoking in the jail. I don't know where you would have gotten the matches to light . . . the crack pipe. He already admitted that, but I didn't find that testimony to be the least bit credible.

 

And that could, certainly, affect my assessment of [Broadwater's] credibility today, but what . . . convinces me, beyond any reasonable doubt, that he understood his rights, and was knowingly and voluntarily waiving them, is that after he initially is read his rights, after he's told, I'm going to write everything down and use it against you, after he says, this isn't being recorded, I don't want this recorded, there's nobody behind that glass, as he signs the form . . . [the] state police officer says . . . ,

 

"Question: I give you my word, there's nobody behind the mirrors, I give you my word."

 

"Answer: Great man."

 

"Question: You need to sign this."

 

As he signs it, he says,

 

"Answer: Something tells me I'm gonna end up regretting this shit, man."

 

As he signs it. I don't thing anything could be more clear but that he understands what's at stake when he starts talking. "I'm going to (sic) end up regretting this shit, man." He understands, clearly, from the statement, as I could tell, as I observed it on the tape, that he was giving a statement that could be used against him.

 

And that, together with what I found to be credible testimony on the part of the investigator, the sequence of events, the fact that the investigator told him, clearly, that he was going to write everything down, and use it against him, convinces me, beyond any reasonable doubt, that he understood what . . . was at stake. He understood what he was doing.

 

In fact, he's . . . fairly sophisticated in understanding that or believing that it's easier to play both sides when he thinks it's not on tape. It's tougher to do it when you know it's on tape. I have no doubt that he knowingly and voluntarily gave a statement to the investigators. And he did it knowing that the investigators would try to use what he said against him. He was hoping there wouldn't be a recorded record of it, because that would be extremely difficult to overcome.

But I tell you that . . . when balanced, I believe the [S]tate has met its burden. And so I am . . . not going to suppress the statement, I'm going to allow it to be used in evidence. I use, as my basis, and I do think that FLETCHER AND PILLAR are controlling, but I also think that he is not, based on the testimony and his statement . . . [which] clearly indicate that he understood what was at stake. He understood what he was waiving. And he understood that speaking . . . could compromise his position. Clearly, what the investigator said at the beginning got through to him. I guess he was just hoping that wouldn't show up on a video somewhere.

 

The issue before us is whether there are sufficient facts in the record to support the judge's factual findings and whether those findings warrant denial of the motion to suppress under the principles outlined in Pillar and Fletcher.

A statement given following a grant of immunity or a promise of confidentiality cannot be considered a voluntary statement, nor can it be used to impeach a defendant at trial. New Jersey v. Portash, 440 U.S. 450, 459-60, 99 S. Ct. 1292, 1297, 59 L. Ed. 2d 501, 510 (1979). "[A] promise of immunity in the form of an assurance by police that a statement would not be used against an accused, or would be considered confidential, without more, renders the statement involuntary." Pillar, supra, 359 N.J. Super. at 269 (citations omitted). This is so because "'[a] promise that statements made will not be used against the defendant purports to remove the specter of proving one's own guilt by making a statement. Such a promise is a truly powerful one, going to the heart of a declarant's reservations about giving a statement.'" Id. at 273 (quoting United States v. Conley, 859 F. Supp. 830, 836 (W.D. Pa. 1994)).

In Fletcher, supra, 380 N.J. Super. at 87, the defendant agreed to go to police headquarters and speak to the investigating officer after a two-hour discussion with another officer who assured him that anything he said would be off the record. The first officer had explained to the defendant that the police just needed information about the guns used in a recent burglary and robbery. Ibid. Although the investigating officer administered Miranda warnings to the defendant on his arrival at police headquarters, we held that the statements made after administration of the Miranda warnings were not voluntary because the officer who made the promise was present during the interrogation and the investigating officer knew of the promise. Id. at 88, 90. We noted that the promise must be viewed from the defendant's perspective, and the interrogating officer had an obligation to advise the defendant that the prior promise was not in force. Id. at 91.

In the case before us, there was no specific promise that the statement made by Broadwater would not be used against him or that it was "off the record." As the motion judge observed, Dougherty unambiguously told Broadwater: "[W]hat you do say to us I'm going to take down, and yes, it is gonna be used against you." Broadwater subsequently expressed concerns about his statement being recorded, as opposed to his unrecorded statement to the two officers being used against him. Once he was satisfied that it would not be recorded, he signed the Miranda card, which included a waiver of his Miranda rights, and made incriminating statements during the subsequent questioning.

Based upon the trial judge's findings with respect to the relative credibility of Dougherty, whom he found to be credible, and Broadwater, whom he did not find credible, as well as his review of the videotape of the interrogation itself, the judge concluded that Broadwater "[understood], clearly, . . . that he was giving a statement that could be used against him." Our standard of review requires us to defer to the motion judge's finding of fact, even if we would not have reached the same result, as long as those findings are supported by sufficient credible evidence. Elders, supra, 192 N.J. at 243. We are satisfied that the judge's conclusion had sufficient support in the record to require our deference.

Consequently, we conclude that the motion judge did not misapply Pillar or Fletcher based upon the facts of this case as he found them.

C.

Broadwater also contends that he was coerced into making a statement by threats that he would be charged with murder. He also asserts that he was not mentally able to make the important decision to waive his Miranda rights because he was exhausted from lack of sleep and was under the influence of drugs or experiencing withdrawal.

After a careful review of the record and the applicable law, we find those arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The motion judge's factual conclusions that there was no coercion and that Broadwater was not impaired were factually supported in the record.

III.

Broadwater also challenges the sentence, arguing that it was excessive and that the judge did not appropriately apply the mitigating and aggravating factors. He also argues that there should have been an ability-to-pay hearing prior to the imposition of a requirement for restitution.

Our review of sentencing decisions is relatively narrow and is generally governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364.

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

Broadwater argues that the judge should not have applied aggravating factor three, because there was no factual basis for a finding that that there was "the risk that the defendant will commit another offense." N.J.S.A. 2C:44-1(a)(3). We disagree. Broadwater had several prior convictions, including one for aggravated assault, and was on probation at the time he shot the victim in this case. We are satisfied that the judge properly applied aggravating factor three.

Broadwater also argues that, because he agreed to pay the victim's medical expenses, the judge should have found mitigating factor six, which requires a finding that "[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained." N.J.S.A. 2C:44-1(b)(6). Again, we disagree. Broadwater maintains that he should not even have been ordered to make restitution at all, because there was no ability-to-pay hearing. He cannot now seek to benefit from an agreement to make restitution that he maintains he never made.

Broadwater next contends that the judge should have found mitigating factor twelve, which is based on "[t]he willingness of the defendant to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1(b)(12). The record, however, reflects that Broadwater made his statement to the police so he could explain his reasons for the shooting, hoping that the shooting would be viewed as an assault rather than an attempted murder. He was not assisting the police in an ongoing investigation involving others. As a result, mitigating factor twelve was not applicable.

Broadwater received the sentence recommended by the State as part of the plea bargain, and the remaining charges were dismissed as promised. Because the sentence does not "shock the judicial conscience," Roth, supra, 95 N.J. at 363-65, we reject Broadwater's argument that it was excessive.

Finally, Broadwater argues that the sentencing judge erred in imposing restitution without holding an ability-to-pay hearing. N.J.S.A. 2C:44-2 sets forth the criteria for imposing fines and restitutions and provides, in relevant part:

In determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay.

 

[N.J.S.A. 2C:44-2(c)(2).]

A sentencing judge must make these findings and state reasons on the record before imposing a fine or restitution. State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.), certif. denied, 138 N.J. 265 (1994). Because the judge did not make the requisite findings before requiring restitution, we vacate the order for restitution and remand for a hearing as to Broadwater's ability to make restitution.

IV.

In summary, we affirm the denial of the motion to suppress and the custodial aspect of the sentence. However, we vacate the order for restitution and remand for an ability-to-pay hearing.

Affirmed in part, vacated in part, and remanded.

 

 

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

2 At the sentencing hearing, Broadwater pled guilty to a simple assault involving a corrections officer and to violation of probation. He was given a concurrent sentence of 180 days for the simple assault. His probation was revoked and he was sentenced to time served.