STATE OF NEW JERSEY v. YANG BIN,
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0314-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YANG BIN, a/k/a WANG BIN,
WANG PING, BIN YANG,
CHEN BIN, SUN BIN, YI CAO,
YU CHEN, HUBI CHEN,
YI CHO, CAO GU, WU YI, and
CHEN MING,
Defendant-Appellant.
____________________________
Argued October 13, 2020 – Decided December 8, 2020
Before Judges Sabatino and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 17-08-1735.
Douglas R. Helman, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Douglas R. Helman, of
counsel and on the brief).
Catlin A. Davis, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Catlin A. Davis, of counsel and on
the brief).
PER CURIAM
Following a three-day jury trial, defendant was convicted of third-degree
computer theft, N.J.S.A. 2C:20-25(c); and third-degree theft by unlawful taking,
N.J.S.A. 2C:20-3. The convictions stemmed from defendant stealing $550 of
free slot play from the player card of a member of the Tropicana Casino's
rewards program, and then using the stolen free play to win $750 at the casino.
The trial proofs included video surveillance footage depicting the events, and
defendant's unrecorded statement to police while in custody admitting that he
paid another individual money for access to the card. Defendant was sentenced
to an extended term of seven years' imprisonment and ordered to pay $1300 in
restitution.
Defendant now appeals from his convictions and sentence, raising the
following arguments for our consideration:
POINT I
THE TRIAL JUDGE ERRED IN CONCLUDING
THAT MIRANDA[1] DID NOT APPLY TO THIS
CASE. OFFICER WHEELER PROMPTED
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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2
[DEFENDANT] TO GIVE A FORMAL STATEMENT
WHILE IN A HOLDING CELL, GOING BEYOND A
ROUTINE BOOKING INQUIRY AND SUBJECTING
[DEFENDANT] TO A CUSTODIAL
INTERROGATION, AND THE STATE CANNOT
PROVE [DEFENDANT] KNOWINGLY WAIVED
HIS RIGHTS DUE TO HIS LOW ENGLISH
PROFICIENCY. SUPPRESSION IS REQUIRED.
POINT II
ALLOWING THREE WITNESSES TO TESTIFY TO
THE CONTENTS OF THE SURVEILLANCE
VIDEOS, AND MAKE IDENTIFICATIONS OF
INDIVIDUALS PRESENT IN THE COURTROOM
WITHOUT ANY FOUNDATION, VIOLATED
[DEFENDANT'S] RIGHT TO A FAIR TRIAL,
NECESSITATING REVERSAL.
POINT III
THE TRIAL COURT COMMITTED PLAIN ERROR
WHEN IT FAILED TO INSTRUCT THE JURY ON
HOW TO EVALUATE [DEFENDANT'S]
INCULPATORY OUT-OF-COURT STATEMENT.
(Not Raised Below).
POINT IV
A REMAND FOR RESENTENCING IS REQUIRED
FOR RECONSIDERATION OF THE ORDER OF
RESTITUTION.
Having considered the arguments and applicable law in light of the record, we
affirm the convictions, but remand the matter for a restitution hearing.
A-0314-18T4
3
I.
The following pertinent facts were presented to the jury. On January 28,
2017, Joseph Fazzia went to the Tropicana Casino to gamble. Based on his
frequent gambling visits to the casino, Fazzia was a member of Tropicana's
rewards program and was given a black player card with a unique identification
number, 1960962. Fazzia's black card allowed him to earn rewards, including
"free slot play," which was the equivalent of "slot cash." Prior to arriving at the
Tropicana, Fazzia had arranged for a Tropicana marketing executive, Mary Lou
Spatolla, to download his earned free slot play into his account. However, when
he arrived at the casino and attempted to use his slot cash, his card had a zero
balance.2 Once he reported the issue to Spatolla, she reloaded his card with the
missing free slot play and began investigating its disappearance.
Upon reviewing the casino's rewards redemption records for Fazzia's
account, Spatolla learned that Fazzia's free slot play had been redeemed earlier
that evening. According to the records, $500 of free slot play had been redeemed
at 7:41 p.m., and an additional $50 of free slot play had been redeemed at 7:43
p.m. Both redemptions had occurred at slot machine number 5333 at location
2
Fazzia explained that although his black card could only be accessed by
entering a "pin number" that he had created, "somebody standing behind [him]"
could observe the number without his knowledge.
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4
B-0908 on the casino floor. Spatolla reported the suspicious activity to Alexis
Gonzalez, a security supervisor at Tropicana, who commenced an investigation
of slot machine 5333, beginning with obtaining the records for the machine.
The records for machine 5333 showed that Fazzia's black card had been
inserted into the machine on two separate occasions on January 28, each time
downloading his free slot play into the machine. On both occasions,
immediately after the free slot play was downloaded, Fazzia's card was removed
and a gold player card with identification number 3484253, registered to a player
by the name of Bing Hua Lu, was inserted into the machine. Lu's card was then
used to change the machine's settings and play the game, which ultimately lead
to the printing of two winning vouchers, the first at 7:43 p.m. for $500, and the
second at 7:44 p.m. for $250.
On February 1, 2017, after reviewing the machine records, Gonzalez
requested the January 28 video surveillance footage from 7:09 p.m. to 7:50 p.m.
for machine 5333 from Jeremy Edwards, a supervisor in Tropicana's
surveillance department. Upon receipt, Gonzalez watched the video at
approximately 4:00 p.m. on February 2, 2017, and identified the man using
machine 5333 at the time in question as defendant. Immediately after viewing
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5
the video, Gonzalez located defendant in the casino, escorted him to the casino
security offices, and called the New Jersey State Police.
State Police Detective Jonathan Wheeler responded to the Tropicana and
arrested defendant after Gonzalez informed Wheeler of his investigation and
provided him with the documents he had collected. Wheeler transported
defendant to the State Police headquarters in Atlantic City, placed him in a
holding cell, and advised him of his Miranda rights. Although defendant "did
not want to provide a formal statement[,]" when Wheeler informed defendant
that he was going to be "charged with . . . some type of theft," defendant
spontaneously responded that he did not "know why [he was] being charged,"
because he had "paid another Asian male $250 to access that account."
Defendant explained that "he never held the . . . card." Instead, "when he
played[,] . . . the Asian male would come up to him and put the . . . card in the
machine, put in the account PIN . . . and then he would have access to their
promotional play."
At trial, in addition to Fazzia, Spatolla, Gonzalez, Edwards, and Wheeler
testifying for the State about their involvement in the incident, Tropicana Slot
Operations Director, Robert Stewart, matched up the casino computer records
with machine 5333's operations and confirmed that the records reflected what
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6
was depicted in the video surveillance footage. Defendant elected not to testify3
but, through cross-examination and summations, advanced the theory that the
State could not prove he acted knowingly or purposely, the requisite mental
states for commission of the offenses.
After the State rested, defendant moved for a judgment of acquittal, Rule
3:18-1, which was denied by the trial judge. Following the jury verdict,
defendant moved for a new trial, Rule 3:20-1, arguing he was deprived of "a fair
trial[,]" primarily due to the admission of his statement at trial in violation of
Miranda, and the improper denial of his earlier Reyes4 motion for judgment of
acquittal. On August 10, 2018, the judge denied defendant's motion but granted
the State's motion to sentence defendant to a discretionary extended term as a
persistent offender pursuant to N.J.S.A. 2C:44-3(a). The judge then merged the
theft by unlawful taking count into the computer theft count and imposed a flat
3
Defendant was assisted by an interpreter throughout the trial.
4
State v. Reyes, 50 N.J. 454 (1967).
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seven-year term of imprisonment.5 A memorializing judgment of conviction
(JOC) was entered on August 24, 2018, 6 and this appeal followed.
II.
In Point I, defendant argues the judge erred in finding that "Miranda's
protections did not apply, but even if they did, that [defendant's] statement was
voluntary." We disagree.
At the May 31, 2018 Miranda hearing, Detectives Jonathan Wheeler and
Michael Nelson, both twelve-year veterans of the New Jersey State Police,
testified for the State. According to Wheeler, after responding to the casino, he
arrested and transported defendant to State Police headquarters, arriving at
approximately 7:30 p.m., and "placed defendant in a holding cell" that did not
5
A concurrent three-year term was also imposed on an unrelated accusation.
6
We point out that contrary to the judge's oral sentence, the JOC mistakenly
indicates that concurrent sentences were imposed on the two theft counts.
However, "where there is a conflict between the oral sentence and the written
commitment, the former will control if clearly stated and adequately shown[.]"
State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). During the remand,
"[t]his discrepancy should be corrected by the trial court and an appropriate
amendatory judgment entered." State v. Rivers, 252 N.J. Super. 142, 147 n.1
(App. Div. 1991).
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have recording capability. 7 Assisted by Nelson, Wheeler immediately began
reading defendant his rights verbatim from a standard Miranda card.8
Both detectives testified defendant was alert and appeared to understand
what was read, nodding his head "up and down" to indicate he understood his
rights. According to the detectives, defendant never spoke any language other
than English, and never stated or physically gestured that he did not understand
what was being said. While Wheeler acknowledged on cross-examination that
defendant spoke with "[s]omewhat of an accent," and that his first language did
not appear to be English, Nelson testified that defendant's first language "never
really . . . came up . . . because the whole conversation was in English."
Although neither detective offered defendant an interpreter, they testified
defendant never requested an interpreter or an attorney. Nelson stated he did
not believe defendant needed an interpreter because "[he] understood
everything."
7
Subject to specified exceptions, Rule 3:17 requires law enforcement officers
to record custodial interrogations of those who are suspected of committing
crimes enumerated in subsection (a), which does not include theft offenses.
8
The Miranda card was admitted into evidence at the hearing.
A-0314-18T4
9
After administering the Miranda rights, the detectives began the booking
process. Wheeler asked defendant if he wanted "to provide a formal
statement[,]" to which defendant responded he did not. According to Wheeler,
had defendant agreed to give a formal statement, he would have been "walked
across the hall to [an] interview room" equipped with recording capability, and
re-administered his Miranda rights. Continuing the booking interview, the
detectives informed defendant he was going to be charged with some type of
theft. At that point, defendant exclaimed that "he didn't understand why he was
being arrested since he paid another individual [$250] for access to the card."
The detectives did not respond to defendant's statement, nor did they ask any
follow-up questions "related to the theft." Nelson testified defendant's statement
did not "immediately" follow defendant's refusal "to give a formal taped
statement[,]" and both detectives testified defendant was never coerced or
threatened in any way and was never promised anything to provide a statement.
Next, as part of the booking process, Wheeler and Nelson began collecting
"biographical information" from defendant, including his "[n]ame, date of birth,
current address, [and] telephone number." Defendant appeared to understand
the questions and provided responsive answers. At approximately 9:00 p.m.,
defendant was fingerprinted and returned to the holding cell. Upon "running his
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10
criminal history," the detectives discovered that defendant, who was then fifty
years old, had fourteen prior arrests with "nine felony convictions." The
criminal history check also revealed "an immigration and a customs enforcement
issue that had to be addressed."
Both detectives testified that defendant's release was delayed because they
had to determine the appropriate charges, review other investigation reports, and
contact Immigration and Customs Enforcement (ICE) officials to ascertain
whether there was a federal detainer or warrant for defendant. At approximately
11:24 p.m., when defendant was about to be released, Wheeler realized
defendant had not signed the Miranda card, which defendant then signed without
hesitation or objection, acknowledging that he had been "read his rights earlier
in the evening." Wheeler acknowledged that he had neglected to have defendant
sign the Miranda card immediately after being advised of his rights. 9
Following the hearing, on June 1, 2018, the judge found no Miranda
violation and entered an order granting the State's motion to admit defendant's
statement at trial. In an accompanying letter opinion, the judge found both
detectives to be "very credible witnesses[,]" who provided "clear and direct"
9
Wheeler explained he did not want to interrupt the investigation by removing
defendant from the holding cell so that he could sign the card.
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11
answers on direct and cross-examination, "had an appropriate demeanor," and
were "consistent in their testimonies." As a result, the judge made detailed
factual findings in accordance with their testimony.
Applying the governing principles to his factual findings, the judge
"agree[d] with the State" that when defendant made his statement, he "was not
subject to interrogation," as required under "the second prong of Miranda."
Instead,
[t]hrough his own volition, while the detective was
obtaining biographical information, . . . [d]efendant
made his statement. It was not prompted no[r elicited]
by the detectives in any way whatsoever. Although . . .
[d]efendant did not give a formal statement as to his
role in the ongoing investigation, he did proffer the fact
that he paid "an unknown Asian man" $250 in order to
gain access to another patron's account, which had $550
worth of promotional dollars available.
The judge determined further that even if Miranda applied, "the rights
were given to . . . [d]efendant and clearly waived." In that regard, the judge
explained:
[F]irst[,] . . . there is no doubt that . . . [d]efendant
waived his rights intelligently . . . . Defendant, at the
time, was of sound age and did not have a known mental
defect that would leave the impression that he was not
able to understand what his Miranda rights were.
Throughout the entire evening, . . . [d]efendant never
requested an interpreter no[r] did he give any indication
that he was unable to understand the detectives. In fact,
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he provided appropriate oral responses to the basic
questions and also gave appropriate physical gestures
in response to some questions such as nodding his head
affirmatively. Second, the [c]ourt finds that . . .
[d]efendant signed a Miranda card . . . . The [c]ourt
recognizes [by] the admissions of the two witnesses
that the card was not si[gned] until several hours after
the oral warnings were given and after he made the
unsolicited statement to the detectives. Nonetheless, by
signing said card at any time, . . . [d]efendant
acknowledged he received the warnings and understood
them. Further, the [c]ourt notes that . . . [d]efendant has
an extensive arrest and conviction history and is thus
familiar with the criminal justice system process and
the Miranda warnings. Lastly, . . . . there is nothing that
shows . . . [d]efendant was forced or coerced to sign his
Miranda rights or make a voluntary statement [by] the
detectives.
In reviewing a trial court's decision to admit or exclude a defendant's
statement following a testimonial hearing, we "must defer to the factual findings
of the trial court so long as those findings are supported by sufficient evidence
in the record" and "disregard those findings" only when they "are clearly
mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). "We defer to those
findings of fact because they 'are substantially influenced by [an] opportunity to
hear and see the witnesses and to have the "feel" of the case, which a reviewing
court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
"A trial court's interpretation of the law, however, and the consequences that
flow from established facts are not entitled to special deference." Id. at 263
A-0314-18T4
13
(citing State v. Gandhi, 201 N.J. 161, 176 (2010)). Thus, "[a] trial court's legal
conclusions are reviewed de novo." Ibid.
Turning to the substantive Miranda principles governing this appeal,
"[t]he United States Supreme Court has made clear that Miranda warnings are
required 'whenever a person in custody is subjected to either express questioning
or its functional equivalent.'" State v. Wright, 444 N.J. Super. 347, 363-64 (App.
Div. 2016) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). See
also State v. Bey, 112 N.J. 45, 68 n.13 (1988) (adopting the Innis "functional
equivalent" of interrogation rule in New Jersey). In Innis, the Supreme Court
explained that "the term 'interrogation' under Miranda
refers not only to express questioning, but also to any
words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an
incriminating response [whether inculpatory or
exculpatory] from the suspect."
[Wright, 444 N.J. Super. at 364 (alteration in original)
(quoting Innis, 446 U.S. at 301) (footnotes omitted).]
"The latter portion of the definition focuses primarily on the perceptions
of the suspect, rather than the intent of the police." State v. Mallozzi, 246 N.J.
Super. 509, 515 (App. Div. 1991) (citing Innis, 446 U.S. at 301). "In order to
constitute interrogation, police conduct 'must reflect a measure of compulsion
above and beyond that inherent in the custody itself.'" Ibid. (quoting Innis, 446
A-0314-18T4
14 U.S. at 300). "Thus, booking procedures and the routine questions associated
therewith are ministerial in nature and beyond the right to remain silent." Ibid.
Indeed, merely informing an in-custody defendant "why he was being detained"
does not trigger an interrogation. Wright, 444 N.J. Super. at 366. "Moreover,
unexpected incriminating statements made by in-custody defendants in response
to non-investigative questions by the police without prior Miranda warnings are
admissible." Mallozzi, 246 N.J. Super. at 515-16.
On the other hand, "[t]he initiation of a general discussion about the victim
clearly satisfies [the Innis] standard[,]" as does "generalized discussion relating
to [the] investigation . . . ." Bey, 112 N.J. at 68 n.13 (citations omitted).
Similarly, asking an in-custody defendant "why he refused to talk was
'reasonably likely to elicit an incriminating response[.]'" Anderson v. Smith,
751 F.2d 96, 105 (2d Cir. 1984) (quoting Innis, 446 U.S. at 301). "[W]hen a
defendant challenges a statement procured by a law enforcement officer without
the benefit of Miranda warnings[,]" the State bears the heavy burden of proving
"beyond a reasonable doubt" that the statement is admissible. Hubbard, 222 N.J.
at 267.
Applying these principles, we are satisfied the judge's determination that
defendant's statement was not subject to questioning nor the functional
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15
equivalent of questioning within Miranda's strictures, as defined by Innis, is
legally sound and supported by the record. As the judge found, the detectives
asking defendant routine questions associated with the booking process and
informing defendant of the charges against him were not designed or done to
elicit any type of incriminating or substantive response from defendant.
Contrary to defendant's contention, the detectives were merely conducting the
routine booking inquiry and providing defendant information to which he was
otherwise entitled.
Defendant contends that Wheeler asking defendant whether he wanted to
give a statement was reasonably likely to elicit an incriminating response. Our
rejection of this contention is supported by the fact that defendant responded to
Wheeler's question by declining the offer. It was only after the detectives
continued the booking interview and informed defendant that he was being
charged with theft that defendant blurted out the statement. In any event, asking
defendant if he would like to give a statement, which calls for a yes-or-no
answer, is a far cry from asking a defendant "why he refused to talk" as occurred
in Anderson, 751 F.2d at 105, where the court determined that the open-ended
question exceeded the bounds of routine booking questions and violated
A-0314-18T4
16
defendant's Miranda rights. Here, Wheeler's question fell outside the Innis
definition of interrogation.
For the sake of completeness, we also agree with the judge's determination
that even if Miranda applied, the statement was properly admitted as the product
of a voluntary waiver. "A confession or incriminating statement obtained during
a custodial interrogation may not be admitted in evidence unless a defendant has
been advised of his or her constitutional rights[,]" and provided a "'voluntary,
knowing and intelligent'" waiver of "any or all of those rights[.]" Hubbard, 222 N.J. at 265 (quoting State v. Hreha, 217 N.J. 368, 382 (2014)). "New Jersey law
requires that the prosecution 'prove beyond a reasonable doubt that the suspect's
waiver was knowing, intelligent, and voluntary in light of all the
circumstances.'" State v. A.M., 237 N.J. 384, 397 (2019) (quoting State v.
Presha, 163 N.J. 304, 313 (2000)). "Furthermore, the State bears the burden of
proving beyond a reasonable doubt that a defendant's confession is voluntary
and not resultant from actions by law enforcement officers that overbore the will
of a defendant." Hubbard, 222 N.J. at 267.
"A waiver may be 'established even absent formal or express
statements[,]'" A.M., 237 N.J. at 397 (quoting Berghuis v. Thompkins, 560 U.S. 370, 383 (2010)), as "[a]ny clear manifestation of a desire to waive is sufficient."
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State v. Kremens, 52 N.J. 303, 311 (1968). "[A] valid waiver does not require
that an individual be informed of all information useful in making his decision."
A.M., 237 N.J. at 398 (quoting State v. Nyhammer, 197 N.J. 383, 407 (2009)).
"Instead, a knowing, intelligent, and voluntary waiver is determined by the
totality of the circumstances surrounding the custodial interrogation based on
the fact-based assessments of the trial court." Ibid. "In the totality-of-the-
circumstances inquiry, courts generally rely on factors such as 'the suspect's age,
education and intelligence, advice as to constitutional rights, length of detention,
whether the questioning was repeated and prolonged in nature and whether
physical punishment or mental exhaustion was involved.'" Ibid. (quoting State
v. Miller, 76 N.J. 392, 402 (1978)). "Moreover, courts applying the totality-of-
the-circumstances test should look to whether the defendant has had previous
encounters with law enforcement and the period of time between when Miranda
rights were administered and when defendant confessed." Hreha, 217 N.J. at
383.
Here, defendant claims the State failed to meet "its heavy burden in
proving [defendant] knowingly waived his rights" because "his English
proficiency is low, the officers knew that, and yet they never asked [defendant]
if he would like an interpreter." In A.M., our Supreme Court considered whether
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18
a defendant, "who [spoke] limited English, waived his constitutional right
against self-incrimination" pursuant to Miranda. 237 N.J. at 389. There,
"[b]efore his interrogation, [the] defendant reviewed a Spanish-language
Miranda form while a Spanish-speaking officer read aloud defendant's rights[,]"
and then signed it after "[t]he officer pointed out the waiver portion of the form
. . . ." Ibid. "Afterward, [the] defendant made incriminating statements in
response to police officers' questions." Ibid.
Noting that "the better practice would have been to read aloud the form's
waiver portion to [the] defendant," the Court concluded the trial court's decision
that the defendant understood his rights and voluntarily waived them wa s
adequately supported by the record. Ibid. The Court considered the totality of
the circumstances, including the defendant's "request to have a Spanish
translator present," which was provided, as well as the absence of any indication
that the defendant "was confused[,]" "did not fully appreciate his rights," or was
"'coerced, intimidated, or tricked' by police into giving a statement." Id. at 399
(citation omitted).
Likewise, here, after assessing the totality of the circumstances, the judge
determined defendant's waiver was valid, a determination that is supported by
the record. Those circumstances included the fact that the entire exchange was
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19
in English, as well as the fact that defendant never requested an interpreter nor
gave any indication he was unable to understand the detectives. Instead,
defendant gave appropriate verbal and physical responses to the detectives'
questions, had an extensive prior criminal history that presumably familiarized
him with the criminal justice system, and ultimately signed the Miranda card
acknowledging that he had been advised of and understood his rights. Contrary
to defendant's contention, there was no requirement that the detectives ask
defendant whether "he [spoke] English fluently" or wanted "an interpreter"
because neither detective was unsure of defendant's English proficiency.
Moreover, we do not interpret A.M. as requiring such questioning in the
circumstances of this case.
III.
In Point II, defendant argues he was deprived of "due process" and "a fair
trial" because three State witnesses provided impermissible opinion testimony
when they narrated video surveillance from the Tropicana and improperly
identified defendant "based only on the video itself." Specifically, according to
defendant, "Edwards made an inverse identification of the person on the video
as 'not Joseph Fazzia,' . . . Gonzalez identified [defendant] as the person in the
video, and pointed him out in court[,]" and Wheeler "ma[d]e an implicit
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20
identification" of defendant "while the video was being played." Defendant
asserts "[n]one of the witnesses directly observed what was depicted in the
video, and thus the narration 'usurp[ed] the jury's function' by offering 'a lay
opinion on a matter . . . as to which the jury is as competent . . . to form a
conclusion.'" Defendant continues that the purported errors were compounded
by the judge's failure to instruct "the jury how to evaluate the identifications."
We review a trial court's evidentiary determinations under an abuse-of-
discretion standard. State v. Perry, 225 N.J. 222, 233 (2016). An abuse of
discretion occurs when a trial court's evidentiary ruling "was so wide of the
mark" as to result in "a manifest denial of justice" and the evidence diverts the
jurors from a reasonable and fair evaluation of guilt or innocence. State v.
Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216
(1984)).
Turning to the substantive principles governing lay opinion testimony,
[l]ay witnesses may present relevant opinion testimony
in accordance with Rule 701, which permits 'testimony
in the form of opinions or inferences . . . if it . . . is
rationally based' on the witness'[s] "perception" and
"will assist in understanding the witness'[s] testimony
or in determining a fact in issue."
[State v. Lazo, 209 N.J. 9, 22 (2012) (second and third
alterations in original) (quoting N.J.R.E. 701).]
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21
"The Rule does not permit a witness to offer a lay opinion on a matter 'not within
[the witness's] direct ken . . . and as to which the jury is as competent as [the
witness] to form a conclusion[.]'" State v. McLean, 205 N.J. 438, 459 (2011)
(alterations in original) (quoting Brindley v. Firemen's Ins. Co., 35 N.J. Super.
1, 8 (App. Div. 1955)). "[L]ay opinion testimony is limited to what was directly
perceived by the witness and may not rest on otherwise inadmissible hearsay."
Id. at 460.
In Lazo, our Supreme Court held a detective's testimony explaining why
he included the defendant's picture in a photo array was inadmissible because
the decision was based on the defendant's "similarities to the victim's
description[,]" not the detective's personal knowledge. 209 N.J. at 19, 21-22.
"In essence, the detective told the jury that he believed defendant closely
resembled the culprit—even though the detective had no personal knowledge of
that critical, disputed factual question." Id. at 22. By doing so, the detective
improperly bolstered the victim's identification and usurped the jury's
responsibility to weigh the victim's credibility. Id. at 13, 22.
The Lazo Court reasoned:
Despite a lack of personal knowledge, the detective
conveyed his approval of the victim's identification by
relaying that he, a law enforcement officer, thought
[the] defendant looked like the culprit as well. In an
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22
identification case, it is for the jury to decide whether
an eyewitness credibly identified the defendant.
Guided by appropriate instructions from the trial judge,
juries determine how much weight to give an
eyewitness' account. Neither a police officer nor
another witness may improperly bolster or vouch for an
eyewitness' credibility and thus invade the jury's
province.
[Id. at 24 (citation omitted).]
In Lazo, the Court distinguished situations in which a law enforcement
official offered a lay opinion identifying a defendant from a surveillance photo
as stand-alone testimony. Id. at 22-23. In that regard, the Court favorably cited
cases where such lay opinion identification was allowed in the federal system
when no other identification testimony was available. Ibid. For example, in
United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005), the court approved
of testimony by a federal probation officer identifying the defendant pictured in
a surveillance photograph taken during a bank robbery.
At Beck's trial, in accordance with the trial judge's directive, the officer
did not mention his position but only stated that he had a professional
relationship with the defendant requiring regular bi-monthly meetings and that
as a result of those contacts, he believed the defendant was the person depicted
in the bank surveillance photograph. Id. at 1013. The testimony was admitted
pursuant to Federal Rules of Evidence 701 and 403, which are analogous to our
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23
own Rules of Evidence. See State v. Rinker, 446 N.J. Super. 347, 362 (App.
Div. 2016) (noting that because "[t]he Federal Rules of Evidence have been the
source of many, although not all, of our Rules of Evidence[,]" we "frequently
consider as instructive federal precedent construing analogous Federal Rules of
Evidence") (citations omitted).
The [Beck] court explained that "lay witness testimony
is permissible where the witness has had 'sufficient
contact with the defendant to achieve a level of
familiarity that renders the lay opinion helpful.'"
Whether that opinion is "helpful," the court continued,
depends on various factors including the witness'
familiarity with the defendant's appearance when the
crime was committed, or with the defendant's manner
of dress, if relevant, whether the defendant disguised
his appearance during the offense or altered [his] looks
before trial, and "whether the witness knew the
defendant over time and in a variety of circumstances."
Applying that standard, the Beck court concluded it was
not error for a parole officer to opine that the defendant
matched a surveillance photo in light of multiple prior
contacts between the two individuals.
[Lazo, 209 N.J. at 22-23 (quoting Beck, 418 F.3d at
1015).]
In contrast, in United States v. LaPierre, 998 F.2d 1460 (9th Cir. 1993),
the court "found it was error for a police officer to have identified a defendant
from a bank surveillance photo because the officer 'not only did not know
[defendant], he had never even seen him in person.'" Lazo, 209 N.J. at 23
A-0314-18T4
24
(quoting LaPierre, 998 F.2d at 1465). Instead, "the officer's knowledge of the
defendant's 'appearance was based entirely on his review of photographs of
[defendant] and witnesses' descriptions of him.'" Ibid. (quoting LaPierre, 998
F.2d at 1465).
In Lazo, the Court stated that "[c]ourts evaluating whether a law
enforcement official may offer a lay opinion on identification [should] also
consider, among other factors, whether there are additional witnesses available
to identify the defendant at trial." Id. at 23. In addition, courts should
"recognize that when there is no change in a defendant's appearance, juries can
decide for themselves—without identification testimony from law enforcement
-- whether the person in a photograph is the defendant sitting before them." Ibid.
Lazo's principles apply equally to the identification of a defendant on video
surveillance footage.
Here, at trial, the video surveillance footage,10 which was approximately
three minutes and thirty-six seconds in length, was played for the jury and
depicted a man in a crowded casino walking up to one of several machines,
inserting a card, entering a sequence of digits, removing the card, inserting a
second card, and then playing on the machine. The man repeated the process by
10
We have reviewed the footage supplied on appeal as part of the exhibits.
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25
exchanging the cards to continue playing, ultimately removing the card and the
winnings and walking away.
All three witnesses watched the same surveillance footage during their
respective testimony and testified as to what they believed the video depicted.
Edwards first testified that the video showed the "Bravo Section of the high-
limit slot area," based on the "camera coverage" of the casino floor and the
displayed "camera number." Edwards identified the machine in question as the
"bottom machine" in the video. Edwards then testified that the video showed "a
male who is not Joseph Fazzia at th[e] machine, based on the times that Alexis
Gonzalez from Security gave [him] . . . . between [7:09 p.m.] and [7:50 p.m.]"
Thereafter, Edwards testified that, at the specified times, the person in the video
inserted and then removed "a Tropicana [b]lack [c]ard" from the slot machine.
When Edwards specified the time that different actions occurred in the
video, defense counsel objected on the ground that the "narration" was
unnecessary. The judge overruled the objection, finding that the narration was
based on Edwards' perceptions, which were informed by his personal knowledge
as security personnel tasked with retrieving the relevant footage from the
surveillance department. The judge also determined that the narration would
help the jury understand what the video captured, which was not self-evident.
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26
We find no abuse of discretion in the judge's evidentiary ruling. Edwards
testified that his job duties included monitoring the surveillance cameras to
ensure there was "no suspicious activity." Having retrieved the relevant footage,
Edwards' testimony was not based solely on the content of the video, but
included testimony describing what he "did and saw[.]" McLean, 205 N.J. at
460. Such fact testimony "is an ordinary fact-based recitation by a witness with
first-hand knowledge." Ibid. Edwards' narration of the video was also based on
his personal perceptions and knowledge of the layout of the casino, the slot
machine in question, and the relevant time periods during which Fazzia's card
was misappropriated as derived from the casino records. The testimony assisted
the jury in understanding Edwards' testimony and in determining a fact in issue.
Thus, it constituted permissible lay opinion under Rule 701.
On appeal, defendant challenges Edwards' "inverse identification"
testimony, arguing Edwards provided no "foundation for how he knew what . . .
Fazzia looked like." However, at trial, defendant's objection addressed Edwards'
narration of the video, not the identification. 11 When a defendant raises an issue
for the first time on appeal, we review the action or omission complained of for
11
In fact, when the judge inquired whether it was "an identification issue,"
defense counsel responded in the negative.
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27
plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). Under this
standard of review, we disregard any error or omission "unless it is of such a
nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-
2. "The possibility of an unjust result must be 'sufficient to raise a reasonable
doubt as to whether the error led the jury to a result it otherwise might not have
reached.'" State v. Ross, 229 N.J. 389, 407 (2017) (quoting State v. Williams,
168 N.J. 323, 336 (2001)).
"Plain error is a high bar . . . ." State v. Santamaria, 236 N.J. 390, 404
(2019). "The 'high standard' used in plain error analysis 'provides a strong
incentive for counsel to interpose a timely objection, enabling the trial court to
forestall or correct a potential error.'" Ibid. (quoting State v. Bueso, 225 N.J.
193, 203 (2016)).
A defendant who does not raise an issue before a trial
court bears the burden of establishing that the trial
court's actions constituted plain error because to rerun
a trial when the error could easily have been cured on
request[] would reward the litigant who suffers an error
for tactical advantage either in the trial or on appeal.
[Id. at 404-05 (alteration in original) (citations
omitted); accord State v. Trinidad, 241 N.J. 425, 445
(2020).]
Here, although Edwards should not have been permitted to testify that
Fazzia was not the man in the video without a foundation establishing that he
A-0314-18T4
28
had personal knowledge of Fazzia's appearance, defendant has not sustained his
burden of showing that the improper lay opinion testimony raises a reasonable
doubt as to whether the error led the jury to a result it otherwise might not have
reached. Significantly, Edwards did not identify or imply that defendant was
the individual at the slot machine. Moreover, the jury was able to observe Fazzia
when he testified and compare the individual in the video with Fazzia. We
therefore find no plain error in Edwards' "inverse identification" of Fazzia in the
video.
Next, we address Gonzalez' testimony. Gonzalez testified that when he
watched the video, he immediately recognized "the male in the jacket with the
white lining in the hood" as defendant. Gonzalez then identified defendant in
the courtroom, and confirmed that the video matched what was shown in the
slot-machine records. While the video was played in the courtroom, Gonzalez
testified that defendant inserted Fazzia's black card into the slot machine and
then entered "Fazzia's pin code to download slot play." He testified that "[t]he
flash of the screen show[ed] that the slot play ha[d] been accepted." Gonzalez
continued that defendant then "removed the [black] card and inserted a gold card
into the machine, and continu[ed] to play." According to Gonzalez, the video
showed that each time defendant won a hand, "he print[ed] out a voucher for the
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29
amount that the hand has won" before "removing the gold card and leaving the
area."
Defense counsel never objected to Gonzalez' identification of defendant
on the video or in the courtroom, nor did she object to Gonzalez' narration of
the video. For the first time on appeal, defendant argues the testimony violated
Rule 701 because there was "[n]o testimony as to whether Gonzalez had seen
[defendant] before, or why he was somehow more capable than the jury of
matching the person he saw in court with the person in the video." Defendant
specifically asserts there was no testimony of Gonzalez' familiarity with
defendant "outside the context of this case." The State counters "[h]ad defendant
made a timely objection to the foundation, the prosecutor could have explained"
that "defendant has a history of committing thefts at Tropicana and Gonzalez
knew defendant based on that history, but that such a history was not admissible
as it constitute[d] prior bad act evidence." In support, the prosecutor points out
that "Gonzalez' familiarity and personal knowledge of defendant was . . .
demonstrated by [Gonzalez'] ability to quickly locate defendant in the casino
after viewing the video on February 2, 2017."
This is exactly the type of purported error that "could easily have been
cured on request," and "to rerun a trial" would "reward the litigant who suffers
A-0314-18T4
30
an error for tactical advantage . . . ." Ross, 229 N.J. at 407 (quoting State v.
Weston, 222 N.J. 277, 294-95 (2015)). See State v. Witt, 223 N.J. 409, 419
(2015) (disallowing a defendant from challenging the lawfulness of a motor
vehicle stop for the first time on appeal where the defendant's failure to raise the
issue in the trial court deprived the State of "the opportunity to establish a record
that might have resolved the issue"). Nonetheless, in determining whether
defendant has demonstrated that the alleged error had "a clear capacity to bring
about an unjust result[,]" we assess "the overall strength of the State's case."
State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J.
275, 288-89 (2006)); see also State v. Sowell, 213 N.J. 89, 107-08 (2013)
(affirming conviction given strength of evidence against defendant despite
admission of improper expert testimony).
Applying that standard, we find no plain error. Unlike Lazo, Gonzalez'
identification was not "the only evidence linking defendant to the crime." Id. at
14. The video depicting the entire criminal episode was presented to the jury.
Additionally, by his own admission, defendant acknowledged his presence in
the casino as well as his use of another individual's card, albeit a card for which
he had allegedly paid. We are also persuaded that the ease with which Gonzalez
located defendant in the casino after viewing the video evinces prior familiarity
A-0314-18T4
31
and personal knowledge sufficient to sustain Gonzalez' identification of
defendant on the video in accord with Rule 701 as well as the identification of
defendant in the courtroom.
Lastly, we turn to Wheeler's testimony. After confirming that the
surveillance footage was the same footage he reviewed during his investigation,
while the prosecutor played the video, Wheeler testified that nothing in the video
supported defendant's statement made in the holding cell. In that regard, the
pertinent direct examination occurred as follows:
[Prosecutor:] When you watched this surveillance
coverage, was there anything in the surveillance . . . that
support[ed] the statement . . . defendant stated to you?
[Wheeler:] No.
[Prosecutor:] Why do yo[u] say that?
[Wheeler:] Because right there you see him, he put that
card in their machine. When he made his statement he
said that he never possessed a card, he said another
Asian male would sit behind him and put the card in
and access the account.
Defendant characterizes Wheeler's testimony as an improper "implicit
identification of [defendant,]" asserting that without establishing any
"familiarity with [defendant] outside the context of this case[,]" Wheeler "was
clearly referring to [defendant] with his use of the male pronoun." Defendant
A-0314-18T4
32
continues that it was "improper" to allow Wheeler to testify during his narration
that defendant's "statement was a lie," because "[t]he jury viewed the video three
times, and was perfectly capable of determining whether it 'support[ed]'
[defendant's] statement."
We agree that Wheeler's testimony implicitly identifying defendant in the
video constituted inadmissible lay opinion under Rule 701. Wheeler did not
personally witness the crime, nor did he have prior interactions with defendant
outside of the case. He based his identification on his investigation and his
observation of the video, rather than any personal knowledge, and was therefore
in no better position than was the jury to draw conclusions about what the video
showed. Moreover, the State does not suggest defendant changed his
appearance before trial such that his appearance in court was unrecognizable
from that in the video.
However, because there was no objection, we again review for plain error
and find none for the same reasons expressed in connection with Gonzalez'
testimony. Likewise, we reject defendant's contention that the judge's failure to
sua sponte instruct the jury on how to assess the identification testimony
constitutes plain error. "When identification is a 'key issue,' the trial court must
instruct the jury on identification, even if a defendant does not make that
A-0314-18T4
33
request." State v. Cotto, 182 N.J. 316, 325 (2005). Identification is "[a] key
issue in th[e] case" when "[i]t [is] the major, if not the sole, thrust of the
defense[.]" State v. Green, 86 N.J. 281, 291 (1981).
Here, identification was not a "key issue" in the case and defendant never
contested his appearance in the video. Indeed, defense counsel did not argue
misidentification in her opening or closing statement, did not cross-examine the
witnesses on identification, and did not object to any witness' identification of
defendant. Instead, given defendant's statement, the defense theory throughout
the trial was that the State could not demonstrate defendant had acted with the
requisite intent. "Therefore, the omission of an instruction on identification was
not clearly capable of producing an unjust result" in the circumstances of this
case. State v. Coclough, 459 N.J. Super. 45, 52 (App. Div.), certif. denied, 240 N.J. 84 (2019).
IV.
In Point III, defendant argues the judge's failure to sua sponte instruct the
jury "on how to evaluate the accuracy of [his] statement as relayed by . . .
Wheeler" violated State v. Hampton, 61 N.J. 250, 270-72 (1972) and State v.
Kociolek, 23 N.J. 400, 421 (1957). According to defendant, "the proper oral
statements charge" was necessary because "Wheeler failed to record
A-0314-18T4
34
[defendant's] statement, failed to take contemporaneous notes, and did not
complete his investigation report until three weeks later." Defendant continues
that the "omission" of the charge "combined with the statement's significance
was clearly capable of influencing the jury's deliberations and producing an
unjust result."
Because there was no objection in the trial court, defendant "waived the
right to challenge the instruction on appeal[,]" State v. Afanador, 151 N.J. 41,
54 (1997) (citing R. 1:7-2), and we therefore again review for "plain error . . . ."
Ibid. (citing R. 2:10-2).
Plain error, in the context of a jury charge, is "[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."
[Ibid. (alteration in original) (quoting State v. Jordan,
147 N.J. 409, 422 (1997)).]
However, "[t]he mere possibility of an unjust result is not enough." State
v. Funderburg, 225 N.J. 66, 79 (2016). "To warrant reversal[,] . . . an error at
trial must be sufficient to raise 'a reasonable doubt . . . as to whether the error
led the jury to a result it otherwise might not have reached.'" Ibid. (quoting State
v. Jenkins, 178 N.J. 347, 361 (2004)). Nevertheless, "we acknowledge that
A-0314-18T4
35
'correct jury charges are especially critical in guiding deliberations in criminal
matters, [and] improper instructions on material issues are presumed to
constitute reversible error.'" Id. at 84 (alteration in original) (quoting Jenkins,
178 N.J. at 361).
Both Kociolek and Hampton, decided fifteen years later, "addressed issues
concerning the admissibility of a defendant's oral statements and the instructions
that should be given to the jury regarding those statements." Jordan, 147 N.J. at
420. "In [Hampton,] the Supreme Court held that although the trial judge was
the sole arbiter of the voluntariness of a defendant's statement, the jury was to
be instructed that they should decide whether the statement was true before
considering it as evidence." State v. Martinez, 387 N.J. Super. 129, 137 (App.
Div. 2006) (citing Hampton, 61 N.J. at 272). "This holding was subsequently
codified as N.J.R.E. 104(c)." Ibid.
[I]n Kociolek the Supreme Court recognized the great
impact of testimony that a defendant made an oral
incriminating admission as well as its inherent
weakness of possible misunderstanding and imperfect
recollection. Noting that verbal precision may well
depend upon "the presence or absence of a single word
[to] substantially alter the true meaning of a single
sentence," the Court directed that the jury was to be
instructed that they should weigh and consider such
testimony with caution.
A-0314-18T4
36
[Martinez, 387 N.J. Super. at 137 (quoting Kociolek, 23
N.J. at 421-22).]
"In [Jordan], the Supreme Court underscored the need for Hampton and
Kociolek instructions in addition to the general credibility charge by holding
that the jury should be so charged even if a defendant made no such request."
Martinez, 387 N.J. Super. at 137 (citing Jordan, 147 N.J. at 425). "However,
. . . failure to instruct in accordance with Hampton or Kociolek absent a request
to charge was not reversible error per se but was to be reviewed under the plain
error standard." Martinez, 387 N.J. Super. at 137
Here, mirroring the model jury charge, the judge provided the jury with a
thorough recitation of the Hampton charge, see Model Jury Charges (Criminal),
"Statements of Defendant" (June 14, 2010), as well as the general charge in
assessing the credibility of a witness's testimony. See Model Jury Charges
(Criminal), "Criminal Final Charge Parts 1 and 2 (General Information to
Credibility of Witnesses)" (May 12, 2014). However, the judge did not provide
the jury with the Kociolek charge.
In Jordan, the Court noted it would be "a rare case where failure to give a
Kociolek charge alone is sufficient to constitute reversible error[.]" 147 N.J. at
428. See id. at 426-27 (listing cases holding "that the lack of a Kociolek charge
[does not] constitute[] plain error"). "Ultimately, whether the failure to give a
A-0314-18T4
37
Kociolek charge is capable of producing an unjust result will depend on the facts
of each case." Jordan, 147 N.J. at 428.
Here, given the totality of the evidence presented at trial, the failure to
give the Kociolek charge does not have the capacity to bring about an unjust
result. Particularly noteworthy in that regard is the fact that defendant relied on
the veracity of his statement as part of his defense as well as the fact that a video
of the crime, Gonzalez' identification of defendant in the video, and strong
additional corroborating evidence was presented to the jury. See State v.
Jackson, 289 N.J. Super. 43, 54 n.2 (App. Div. 1996) (noting that "the failure to
give a requested Hampton/Kociolek charge concerning a defendant's oral
statements" may be harmless error "if the crime had been videotaped and was
committed before numerous unimpeachable witnesses with strong additional
circumstantial evidence"). Moreover, viewing the charge as a whole, as we are
required to do, because the Hampton charge and the general credibility
instructions were provided, we find no plain error. See State v. Crumb, 307 N.J.
Super. 204, 251 (App. Div. 1997) (viewing "the factual context of the case and
the charge as a whole" and finding no plain error in the failure to give a Kociolek
charge where the trial court gave "the Hampton charge, along with the general
and comprehensive credibility instructions").
A-0314-18T4
38
V.
In Point IV, defendant asserts "a remand . . . is required to reevaluate the
$1300 in restitution" imposed because "[t]here was no factual basis at the trial
for the $1300 figure, and there was also no inquiry into the ability of [defendant]
to pay such an amount." As to the former, defendant argues that "Fazzia did not
suffer a 'loss' . . . because . . . the missing value in his account was quickly
replaced by the casino[,]" and "Tropicana did not suffer $1300 in losses"
because "the free slot play . . . has no value" and "there was no evidence
presented at trial that any of the vouchers were actually redeemed." Regarding
the $550 in free slot play, the State counters that "[r]eimbursing . . . free slot
play did cause a pecuniary loss to the casino as the casino had to give a second
amount of electronic cash to Fazzia." The State explains that while free slot
play "is not cash itself," it "operates as electronic cash" and "still possesses
pecuniary value, as it allows customers to access and play slot machines that
they would otherwise have to pay to use." Regarding the $750 in winning
vouchers, the State does not expressly dispute defendant's assertion that there
was no evidence presented to support the redemption of the vouchers.
" N.J.S.A. 2C:43-3 provides that the restitution ordered to be paid cannot
exceed the loss sustained by the victim." State v. Scribner, 298 N.J. Super. 366,
A-0314-18T4
39
370 (App. Div. 1997). N.J.S.A. 2C:44-2 sets forth the criteria for the imposition
of restitution as follows:
b. The court shall sentence a defendant to pay
restitution in addition to a sentence of
imprisonment . . . that may be imposed if:
(1) [t]he victim . . . suffered a loss; and
(2) [t]he defendant is able to pay or, given
a fair opportunity, will be able to pay
restitution.
....
c. (2) [i]n 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.
"In order to impose restitution, a factual basis must exist and there must
be an explicit consideration of defendant's ability to pay." Scribner, 298 N.J.
Super. at 372. "Indeed, N.J.S.A. 2C:44-2b(2) specifically provides that
restitution is an available sanction only if the offender has the present or future
ability to pay." Id. at 371. "The sentencing judge has been granted considerable
discretion in evaluating a defendant's present or future ability to pay; however,
that discretion is not unfettered[,]" and "[t]he sentencing judge must explain the
A-0314-18T4
40
reasons underlying the sentence, including the decision to order restitution, the
amount of the restitution, and its payment terms." Ibid. (citing State v. Newman,
132 N.J. 159, 169-70 (1993)); see also State v. Harris, 70 N.J. 586, 599 (1976)
(stating that "statement of reasons" rule extends to imposition of restitution).
Further, because "[t]he process of ordering restitution implicates due process
rights[,]" "settled law requires the court to conduct at least a summary hearing"
prior to imposing restitution. State v. Paladino, 203 N.J. Super. 537, 547 (App.
Div. 1985). See State in the Interest of D.G.W., 70 N.J. 488, 501, 503 (1976)
(holding that "a summary proceeding" adequately safeguards due process rights
implicated in imposition of restitution).
Here, for the first time on appeal, defendant objects to the $1300
restitution amount and contests his ability to pay. At sentencing, the judge
imposed the restitution amount requested by the State but made no findings
relative to the loss sustained by the victim or defendant's ability to pay
restitution. Relying on State v. Orji, 277 N.J. Super. 582 (App. Div. 1994), the
State asserts that in the absence of an objection at sentencing, "defendant is not
now entitled to demand" a restitution hearing because "there was no good -faith
dispute concerning the restitution" and "defendant's ability-to-pay can be
inferred based on his history of restaurant employment from 2000 to 2018 , his
A-0314-18T4
41
good health, and his . . . status as a high school graduate" detailed in the pre-
sentence investigation report (PSR).
In Orji, "[a]fter a jury trial, [the] defendant was convicted of one count of
third degree theft by deception" and sentenced "to a five-year probationary term
conditioned upon serving 220 days in the county jail . . . ." 277 N.J. Super. at
584. Without conducting a restitution hearing, the trial court also ordered the
defendant to pay $8,408.40 in restitution "as a condition of probation." Ibid.
"[W]e recognize[d] due process normally requires a hearing on both the ability
to pay and the time period for making restitution[.]" Id. at 589. However, we
were satisfied that under the circumstances presented, the trial court was not
required to conduct a restitution hearing because the defendant did not dispute
the "amount of restitution" or "his ability to pay" over "the five years of
probation." Id. at 589-90
We pointed out that
[t]here was evidence in the [PSR] that defendant has a
bachelor's degree in marketing and is gainfully
employed as the owner-operator of a limousine-taxi
service. From this evidence the judge properly could
have inferred that defendant had the ability to pay the
restitution ordered. Also, the court gave defendant the
maximum probationary sentence, N.J.S.A. 2C:45-2,
thereby allowing a maximum duration for payment of
restitution.
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42
[Id. at 589.]
On the other hand, in State v. McLaughlin, 310 N.J. Super. 242, 246, 263,
265 (App. Div. 1998), we "remand[ed] the matter for a hearing to determine
[the] defendant's ability to pay" where the defendant "argue[d] for the first time
on appeal" that "the sentencing court failed to consider his ability to pay" before
ordering restitution in conjunction with the imposition of an aggregate "term of
ten years with a two[-]year parole disqualifier" following "trial convictions" for
theft and forgery related offenses. There, "[t]he trial court ordered restitution in
the amount of $271,305.33 . . . representing the amount defendant admitted to
have forged in checks" but "made no findings relative to defendant's ability to
pay restitution." Id. at 263.
In distinguishing Orji, we explained that "the amount of restitution
ordered in Orji was only $ 8,408.40, and the defendant was sentenced to a five-
year probationary term . . . ." McLaughlin, 310 N.J. Super. at 264. Additionally,
"defense counsel had argued to the trial court that incarceration of Orji would
be counterproductive to payment of restitution[.]" Ibid. Further,
unlike in Orji, there was no mention by defense counsel
of the likelihood of defendant paying restitution of
$271,000--or any other amount--if not incarcerated.
The sentencing transcript is devoid of any mention of
defendant's financial resources and/or his likely future
A-0314-18T4
43
earnings. Nor does the presentence report contain any
information pertaining to defendant's ability to pay--it
merely states: "The defendant's income, nor monthly
payments toward credit card expenses was indicated.
He is currently incarcerated in the Camden County
Correctional Facility."
[McLaughlin, 310 N.J. Super. at 264.]
Likewise, in State v. Pessolano, 343 N.J. Super. 464, 478-79 (App. Div.
2001), "we remand[ed] for reconsideration of the restitution award" where the
defendant argued for the first time on appeal that "the order of restitution . . .
was improper absent a hearing as to ability to pay." There, the defendant "was
ordered to pay $140,268.89 in restitution, 'minus any amount paid by co-
defendant, Warren Kaye[,]'" in conjunction with an aggregate eight-year
sentence of imprisonment following trial convictions for corporate and
individual tax evasion and related offenses. Id. at 467-68. We explained that:
In this case, the judge held no hearing and made no
comments during sentencing about defendant's
financial status or ability to pay. Moreover, unlike
cases such as Orji, defendant "disput[ed]" the amount
of restitution, and he was no longer employed, had lost
his business, and was about to be incarcerated.
Furthermore, the amount of restitution was made
subject to an unknown credit for any amount paid by
Kaye, and there was no fixed responsibility in terms of
the obligation of either defendant.
[Pessolano, 343 N.J. Super. at 479.]
A-0314-18T4
44
Similarly, here, the judge held no hearing and made no comments during
sentencing about defendant's financial status or ability to pay. While the PSR
noted that "defendant reported . . . work[ing] for various Chinese restaurants
since coming to the [United States] in 2000[,]" at the time defendant was
interviewed on June 14, 2018, he was "[u]nemployed," "[i]ncarcerated," and had
no assets. Further, although defendant did not expressly dispute the restitution
amount at sentencing, in his motion for a new trial adjudicated immediately prior
to sentencing, he disputed "the value of [the State's] theft case." 12 Thus, we
remand for a hearing to ascertain the actual loss to the victim and to determine
defendant's ability to pay restitution. If after the hearing, the trial court decides
to award restitution, "it should explain the reasons underlying its decision,
including the amount of restitution awarded and the terms of payment." State
v. Kennedy, 152 N.J. 413, 425 (1998). See also State v. Martinez, 392 N.J.
Super. 307, 321-22 (App. Div. 2007) (remanding for a hearing on the issue of
the defendant's ability to pay where, at sentencing, defendant acknowledged the
State's proofs regarding his "equity . . . in real estate . . . and . . . salary that he
continued to receive through other employment" but "objected to their
12
On the jury verdict sheet, the jury determined that the value of the property
stolen "[e]xceed[ed] $500[] but [was] less than $75,000[]."
A-0314-18T4
45
sufficiency as a basis for a finding that he had an ability to pay the restitution . . .
the State sought.").
In sum, we affirm defendant's convictions, but vacate the restitution
imposed and remand the matter for a restitution hearing as well as the necessary
correction to the JOC to reconcile the oral sentence with the written
memorialization.
The judgment of conviction and sentence are affirmed, except as to the
restitution ordered, and the matter is remanded for a restitution hearing and
correction of the JOC. We do not retain jurisdiction.
A-0314-18T4
46
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