Opinion
DOCKET NO. A-6008-12T4
03-10-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MIGUEL A. ORTIZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, Legal Assistant, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10-06-0497. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, Legal Assistant, of counsel and on the brief). PER CURIAM
Tried by a jury on Burlington County Indictment No. 10-06-0497, defendant Miguel Ortiz was convicted of twenty-one counts charging him with seven burglaries, two attempted burglaries and other associated crimes that occurred in different towns between May and October 2009. The judge sentenced defendant to an aggregate twenty-year term of imprisonment, with a ten-year period of parole ineligibility. Defendant was also ordered to pay restitution in the amount of $35,000.
Defendant raises the following issues on appeal:
POINT I
THE TRIAL COURT'S ERRONEOUS CHARGE AS TO THE PRESUMPTION OF INNOCENCE DEPRIVED MR. ORTIZ OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL AS GUARANTEED BY THE STATE AND FEDERAL CONSTITUTIONS.
POINT II
THE COURT ERRED IN FAILING TO PROVIDE THE JURY WITH A LIMITING INSTRUCTION CONTRASTING THE PERMITTED AND PROHIBITED PURPOSES FOR WHICH THE JURY MIGHT USE THE EVIDENCE OF THE VARIOUS ATTEMPTED AND COMPLETED BURGLARY CHARGES. (Not raised below).
POINT III
A REMAND IS NECESSARY TO DETERMINE IF MR. ORTIZ SHOULD RECEIVE ADDITIONAL JAIL CREDITS UNDER THE COMPANION CASES OF STATE V. HERNANDEZ AND STATE V. ROSE.
POINT IV
RESENTENCING IS NECESSARY BECAUSE THE SENTENCING COURT FAILED TO CONSIDER A MITIGATING FACTOR THAT WAS CLEARLY EVIDENT IN THE RECORD AT THE TIME OF SENTENCING.
POINT V
A REMAND IS NECESSARY FOR A PROPER DETERMINATION OF RESTITUTION AND FOR AN
INQUIRY INTO MR. ORTIZ'S REASONABLE ABILITY TO PAY THAT RESTITUTION.We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction. We remand the matter to the Law Division to recalculate the amount of jail credits defendant earned. In all other respects, we affirm the sentence imposed upon defendant.
I.
Five other people were charged with defendant in various counts of the indictment, including his wife, Beth Mitchell, and Arquimide Pierantony, who pled guilty and was one of the State's principal witnesses at trial. Pierantony explained the modus operandi of the burglary ring for the jury.
Defendant and one or more of his co-defendants would meet and search the online phone directory for Burlington County residents with Asian-Indian surnames. The group targeted these addresses based on their belief that people of Asian-Indian descent possessed higher quality jewelry. They would call several homes until they identified five to ten residences at which no one answered. The group would enter the address into Mapquest to get a "live view" of the surrounding area in order "to know [the site's] in-and-out points . . . so if something bad happened, [they] would know where to run to." Mapquest also allowed them to "zoom in" on the houses to see if the windows were alarmed and to identify the best point of entry.
Once the targets were selected, a group of three or four members of the ring would drive to the targeted homes, deciding the roles each would play when they arrived. As they drove, one of the co-defendants would continuously call to confirm that no one was home. If someone answered the phone, the group would move on to the next target. During the planning and execution, the group called the residences and communicated with each other using cellphones with walkie-talkie capabilities.
Pierantony testified that when the group arrived at a target, one person would knock on the front door while the others remained in the car and called the residence again. If certain no one was home, one person would enter the house usually through a back door or window, and let another inside. One person would search the master bedroom, another would search the rest of the house and one person would remain in the car as a lookout.
After the burglary was completed, the group would return to one of their homes and separate the "real" jewelry from the "fake" jewelry. The jewelry was sold to a jeweler on Canal Street in New York City, and any stolen electronics would be sold to drug dealers or to people who had specifically requested the items.
Pierantony testified in detail about the specific burglaries and attempted burglaries charged in the indictment. The group used Mitchell's Hyundai Santa Fe when committing some of the burglaries. The State produced witnesses that corroborated portions of Pierantony's testimony. For example, a mail carrier described seeing a similar vehicle in the area during one of the burglaries, as did the neighbor of another burglary victim. The neighbor actually witnessed two men emerge from the victim's home carrying duffle bags and run to and enter a maroon SUV before it sped away.
By checking the caller identification feature at the phones in the burglarized homes, police discovered repeated phone calls made from certain phone numbers. They also learned that a red Santa Fe was registered to defendant's wife, and EZ Pass records demonstrated that the vehicle exited and entered the New Jersey Turnpike near one of the homes on the date it was burglarized.
Information obtained through communications data warrants allowed police to plot the location of certain phones used to call the residences repeatedly on the dates of the burglaries, and to identify the subscribers of those phone accounts. They tracked one cellphone to a building in Burlington County where Mitchell worked, and surveilled the location. Police observed Mitchell meet defendant and two of his co-defendants as they sat in a car in the parking lot. They saw Mitchell hand defendant a phone book and also observed defendant using the phone book to make calls.
On October 9, 2009, police were able to track defendant via cellphone, as he approached a certain residence in Delran. They set up a surveillance of the home, and apprehended defendant and co-defendant Maxie Cintron before they entered the home. The driver of the vehicle in which defendant and Cintron arrived, however, was able to escape capture. Cintron had a canvas bag hidden in the sleeve of his jacket that contained two crowbars, a folding knife, two non-matching golf gloves, and a lighter. Defendant waived his Miranda rights and gave a video-recorded statement. Defendant claimed that he and his codefendant were in the area because they were lost, and he had intended to go to the bathroom in the woods behind the homes.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
A redacted version of defendant's statement was played for the jury. Neither the recording nor a transcript of the statement is included in the appellate record; however, we summarize its content based upon the closing arguments of counsel. --------
During a search of Mitchell's office, police found a telephone book with pages torn out corresponding to the surnames of several burglary victims. Mitchell's Hyundai SUV was impounded and searched. Police seized a large screwdriver, an EZ Pass tag, and a stone described by one of the officers as a small diamond.
Defendant elected not to testify on his own behalf. We need not recite the other limited testimony offered on the defense case.
II.
In Points I and II, defendant asserts errors in the judge's charge to the jury. He first argues that the judge committed "structural error" in his final instructions by telling the jurors,
At the outset of the trial, we discussed three overriding rules which you know all too well by now. They deal with the presumption of innocence, the burden of proof and proof beyond a reasonable doubt.In Point II, defendant argues the judge committed reversible error by failing to sua sponte provide jury instructions as to the permitted and prohibited use of evidence of multiple, separate crimes charged in the same indictment.
The defendant . . . has been seated in this courtroom, has been presumed innocent throughout the course of the trial. And that presumption of innocence remains with him in the jury deliberation room, unless the State has proven beyond a reasonable doubt one or more of the charges.
[(Emphasis added).]
A.
Point I requires us to consider some additional facts. After providing the above instructions and taking a short recess before starting the balance of the charge, defense counsel lodged an objection:
COUNSEL: You said that the defendant was entitled to a presumption of innocence unless the State has proven guilt beyond a reasonable doubt in one or more of the charges.
THE COURT: Yes.
COUNSEL: And perhaps I misunderstand the law, but I believe he's entitled to a presumption of innocence on every charge they deliberate on.
THE COURT: In the end, the Court is going to tell the jury they must decide each count separately. There are just so many ways you can word all this.
All right, it's noted. But the Court in the end will be telling the jury that it must decide each charge separately.
COUNSEL: Thank you, judge.
When he resumed, the judge told the jury: "You must, of course, judge the defendant separately with respect to each count of burglary; and all of the other counts in the indictment are to be judged separately as well." After instructing the jury as to the elements of each separate crime charged, the judge reiterated that if the State failed to prove any element beyond a reasonable doubt, the verdict must be not guilty.
After the judge instructed the jury on the specific counts, he asked if either counsel wanted to be heard. At sidebar, defense counsel stated, "One, I'm not sure whether or not the Court told the jury that they had to consider each count individually." The court responded, "Oh, I did that." Defense counsel said, "Okay," and moved on to object to another instruction. The sidebar conference concluded and the judge readdressed the jury: "Ladies and gentlemen, just so it's clear, each count of the indictment must be judged separately. And I think the Court has already said that to you and that you understand that."
Defendant moved for a new trial prior to sentencing. Among other things, defense counsel argued that the instructions on the presumption of innocence led jurors to believe that if they found defendant guilty on one charge, the "presumption of innocence concerning all the others would be vitiated." Counsel argued the supplemental charges were insufficient, and that the judge should have told the jury that he misspoke and clearly state that the presumption of innocence applied to each and every charge. The judge disagreed, concluding that "in the context of this charge, as to the ordinary person's understanding, this Court's satisfied the jury wasn't misled at all." He denied the motion for a new trial.
Defendant argues that "[t]he jury was misinformed as to the duration of the presumption of innocence," and that the error was a "structural error" that requires reversal without consideration of whether the error was harmful or not. We disagree.
Structural error "is a 'structural defect[] in the constitution of the trial mechanism, which def[ies] analysis by "harmless-error" standards.' It 'affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself.'" State v. Camacho, 218 N.J. 533, 549 (2014) (citations omitted) (alteration in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302, 331 (1991)). Structural errors, which "'are so intrinsically harmful as to require automatic reversal . . . without regard to their effect on the outcome,'" are found "to exist only in a very limited class of cases." Ibid. (quoting Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35, 46 (1999)). It is well-settled that not all constitutional errors are structural errors; instead, "'most constitutional errors can be harmless,' and are therefore not subject to automatic reversal." Id. at 547 (quoting Fulminante, supra, 499 U.S. at 306, 111 S. Ct. at 1263, 113 L. Ed. 2d at 329).
"In the context of jury instructions, the United States Supreme Court has acknowledged 'that harmless-error analysis applies to instructional errors so long as the error at issue does not categorically "vitiat[e] all the jury's findings."'" Id. at 550 (alteration in original) (quoting Hedgpeth v. Pulido, 555 U.S. 57, 60-61, 129 S. Ct. 530, 532, 172 L. Ed. 2d 388, 391-92 (2008)). "'[W]hile there are some errors to which [harmless-error analysis] does not apply, they are the exception and not the rule.'" Hedgpeth, supra, 555 U.S. at 61, 129 S. Ct. at 532, 172 L. Ed. 2d at 391 (second alteration in original) (quoting Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106, 92 L. Ed. 2d 460, 471 (1986)).
A constitutionally-deficient jury charge regarding the State's burden to prove each element of an offense beyond a reasonable doubt constitutes structural error. Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S. Ct. 2078, 2082-83, 124 L. Ed. 2d 182, 190-91 (1993). However, the omission of a jury instruction on the presumption of innocence, even when requested by defense counsel, does not. Kentucky v. Whorton, 441 U.S. 786, 789, 99 S. Ct. 2088, 2090, 60 L. Ed. 2d 640, 643 (1979). Instead, the harmful error analysis applies and a court evaluates the error "in light of the totality of the circumstances -- including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors -- to determine whether an accused received a constitutionally fair trial." Ibid.
None of the cases cited by defendant stand for the proposition that providing an erroneous charge regarding the presumption of innocence is structural error requiring automatic reversal. In our view, harmful error analysis applies here.
In deciding whether any erroneous jury instruction is harmful or harmless, "'[t]he test to be applied . . . is whether the charge as a whole is misleading, or sets forth accurately and fairly the controlling principles of law.'" State v. Baum, ___ N.J. ___, ___ (2016) (slip op. at 14) (emphasis added) (quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998) (emphasis added)). In State v. Medina, 147 N.J. 43, 55-56 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 37 L. Ed. 2d 688 (1997), our Supreme Court addressed a strikingly similar situation to the one presented here. In Medina, the judge instructed the jury, "[T]he presumption of innocence 'does not fade or extinguish until twelve of you agree that [the defendant] is guilty of something.'" Id. at 55. The Court opined that the "misleading nature of this comment" was "self-evident," and emphasized that "[i]n a multi-count indictment, . . . a jury finding that the defendant is 'guilty of something' does not strip the defendant of the presumption of innocence on the remaining charges." Ibid. However, the Court found the statement did not constitute plain error, explaining that in assessing the judge's charge as a whole, "[t]he court adequately explained that [the defendant] was innocent until proven guilty and that the State must prove his guilt beyond a reasonable doubt. . . . Despite the regrettable errors, the charge did not so infect the instruction as to lower the State's burden of proof." Id. at 55-56.
Here, like Medina, the judge immediately instructed the jurors appropriately as to the State's burden of proving defendant's guilt beyond a reasonable doubt as to each separate count under consideration. We cannot conclude the jury was confused or misled about the nature of the presumption of innocence, or that defendant was entitled to that presumption unless and until the jurors unanimously agreed that the State met its burden of proof beyond a reasonable doubt on the particular charge under consideration.
B.
For the first time on appeal, defendant argues that his conviction must be reversed because the judge failed to sua sponte provide Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (June 4, 2007) (the model charge), or a variation thereof, in light of the multiple, separate crimes contained in the indictment. The model charge specifically advises the jury that it may consider evidence of other uncharged crimes or bad acts for limited permitted purposes, but that it may not consider the evidence as demonstrating a defendant's propensity to commit the charged crimes. Ibid. Defendant asserts the lack of such an instruction allowed the jury to make the impermissible inference that "since [defendant] may have committed one burglary, he likely committed all of the offenses charged."
The Court has said that
[i]n the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to object signifies that "'"in the context of the trial[,] the [alleged] error was actually of no moment."'" State v. Ingram, 196 N.J. 23, 42-43 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002)).
[State v. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
Defendant concedes that the judge's denial of his pre-trial severance motion was proper, and that the judge's reasoning, i.e., the crimes could be tried jointly because the evidence as to each burglary was admissible under N.J.R.E. 404(b) to prove identity, "cannot be faulted." As such, the model charge was technically inapplicable, because the jury was not considering evidence of uncharged bad acts.
Defendant relies upon State v. Krivacska, 341 N.J. Super. 1 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). There, the defendant was charged with separate sexual crimes against two minor victims. Id. at 11. We affirmed the trial court's decision to permit the State to present, at a single trial, evidence of the crimes committed against both victims. Id. at 40-42.
We criticized the judge's failure to provide the appropriate limiting instruction essentially contained in the model charge. Id. at 42. We opined that an "appropriate instruction would have apprised the jury of its right to consider the other-crime evidence in determining" whether defendant had the opportunity to commit the sexual assaults at school, as the State contended. Id. at 43. However, we concluded the failure to provide the instruction was not plain error because (1) the defendant failed to request the limiting instruction, (2) the court had conveyed that each charge needed to be considered separately, and (3) the defendant had "little to gain and much to lose by requesting a limiting instruction." Ibid.
In this case, defense counsel never asked for a limiting instruction. Additionally, the judge made clear to the jurors on more than one occasion that they needed to consider the State's proofs separately as to each count in the indictment. We doubt that defendant suffered any prejudice because had the model charge or some variation been provided, the jury would have been instructed that evidence of all the burglaries could be considered when evaluating the State's proofs of defendant's identity as to each burglary. Lastly, the proof of defendant's guilt was overwhelming, which further leads us to conclude that the failure to give the model charge was not plain error. Chapland, supra, 187 N.J. at 289.
III.
We turn to the sentencing arguments. "Appellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). We assess whether the aggravating and mitigating factors "'"were based upon competent credible evidence in the record."'" State v. Miller, 205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting Bieniek, supra, 200 N.J. at 608). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009). "[W]here mitigating factors are amply based in the record before the sentencing judge, they must be found." State v. Dalziel, 182 N.J. 494, 504 (2005). Accordingly, "mitigating factors 'supported by credible evidence' are required to 'be part of the deliberative process.'" Case, supra, 220 N.J. at 64 (quoting Dalziel, supra, 182 N.J. at 505).
In Point IV, defendant argues that the trial court abused its discretion by failing to find mitigating factor eleven, see N.J.S.A. 2C:44-1(b)(11) ("imprisonment of the defendant would entail excessive hardship to himself or his dependents"), despite ample evidence in the record. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).
At sentencing, without specifically mentioning mitigating factor eleven, defense counsel stated that visitation in a prison setting was "a difficult way to interface with a child," such as defendant's young son, and defendant would like "some meaningful time . . . for the child to get to know him and of course benefit from knowing him." However, defendant was already incarcerated at the time of his son's birth, and defendant never lived with or supported the child. See Dalziel, supra, 182 N.J. at 505 ("[B]ecause [the defendant] has never lived with or supported his fiancée and child, his incarceration could not constitute an excessive hardship on them.").
In Point III, defendant argues a remand is necessary because he was not afforded a hearing for "a proper determination of [his] jail and gap time credits." He claims that the court determined the credits without the "participation of the defendant, his counsel, and the State." We provide some background.
Jail credits were first discussed at a pretrial hearing, at which the prosecutor stated that he believed the credits determined by the court's team leader were correct, but defendant disagreed. There was no discussion of the actual amount of credits.
At sentencing, defense counsel argued the credits reflected on the pre-sentence report -- 426 jail credits and zero gap time credits -- were incorrect. He maintained the jail credits should have been calculated from the actual date of defendant's arrest, October 9, 2009, not from October 16, 2009, as listed in the report. Defense counsel further argued that defendant was entitled to an estimated 839 days in gap time credit, calculated from December 15, 2010, the time that defendant began serving an unrelated sentence in Bergen County, until the date of sentencing.
The judge responded,
There's been an argument about gap time credit and additional jail credit. The Court cannot resolve that this afternoon. It will, however, at the conclusion of the sentence refer the matter to the division manager's office for review and the Court itself will review the matter. If he's entitled to additional credits, it will be reflected on the judgment of conviction and a letter will be forwarded to counsel noting that.The judge made no further findings on the record as to these credits, nor does the record reflect that the issue was resolved by promised correspondence. The judgment of conviction (JOC) reflects 426 days of jail credit and 869 days of gap time credit.
Before us, defendant fails to make a specific argument regarding the amount of gap time credits awarded. There appears to be no error in the calculation of gap time credits, since the JOC mirrors the dates proffered by defense counsel at sentencing, and the resulting gap time credit is in fact greater than defense counsel sought.
However, the record fails to reveal resolution of the dispute over jail credits, and the JOC seemingly reflects an incorrect arrest date. Out of an abundance of caution, we remand the matter to the Law Division to conduct a hearing on the appropriate amount of jail credits to which defendant is entitled, and to file an amended JOC as necessary.
Lastly, in Point V, defendant argues that remand is necessary as he was not afforded a restitution hearing and was not given the opportunity to testify as to his ability to pay. He further argues that the court imposed an "arbitrary" restitution amount.
Pursuant to N.J.S.A. 2C:44-2, a court may "sentence a defendant to pay restitution . . . 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." N.J.S.A. 2C:44-2(b)(1), -(2). When establishing the restitution amount and repayment schedule, "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). "The evaluation is necessarily imprecise because it contemplates an examination of the future ability to pay if the defendant currently does not have financial resources." State v. Newman, 132 N.J. 159, 169 (1993).
Because "'ordering restitution implicates due process rights, . . . settled law requires the court to conduct at least a summary hearing.'" State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.) (quoting State v. Paladino, 203 N.J. Super. 537, 547 (App. Div. 1985)), certif. denied, 170 N.J. 210 (2001). If "there is a good faith dispute over the amount of the loss or defendant's ability to pay, the trial court[,] as a matter of defendant's due process entitlement, must hold a hearing on the issue, the character of which should be appropriate to the nature of the question presented." State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994). If there is no dispute over the restitution amount or the court's determination of the defendant's ability to pay, a separate hearing on restitution is not necessary. State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994) (finding no merit to defendant's argument that he was entitled to a restitution hearing where there was no dispute as to the amount of restitution, and the defendant did not object to the trial court's determination of his ability to pay).
An order of restitution is discretionary and entitled to our deference on appeal. State v. Harris, 70 N.J. 586, 595 (1976). However, if nothing in the record reflects the trial court's consideration of the defendant's ability to pay, remand is warranted. See Pessolano, supra, 343 N.J. Super. at 479 (remanding where nothing in the record permitted the reviewing court to find the trial court considered defendant's ability to pay); State in re R.V., 280 N.J. Super. 118, 124 (App. Div. 1995) (same).
Here, although given ample opportunity to do so, defendant raised no objection to the amount of restitution or the court's determination of his ability to pay, nor did he request a separate hearing on restitution. Consequently, we might consider this issue to have been waived. See R.V., 280 N.J. Super. at 121.
Even if the issue was not waived, our thorough review of the record indicates the judge did not mistakenly exercise his discretion in ordering restitution without holding a separate hearing. When setting the amount, the court was mindful of its obligation to establish the amount of the victims' losses and consider defendant's ability to pay. The judge properly based the victims' losses on the evidence adduced at trial. See State v. Martinez, 392 N.J. Super. 307, 318 (App. Div. 2007). The judge reasoned that the resultant restitution award of $35,000 represented "only a fraction of the losses claimed allowing for each victim's overestimation of the loss incurred and the defendant's ability to pay."
As to defendant's ability to pay, the judge found defendant would have "zero earning capacity for at least the next [ten] to [eleven] years" because of his incarceration, and defendant would be at least fifty years old upon release from prison. The judge found that defendant had "no particular skill[s]," his ability to find "meaningful employment w[ould] be difficult" and "[h]is ability to pay restitution w[ould] be minimal at best." The judge ordered restitution of $175 per month, which "represent[ed] the Court's best attempts to reconcile the victims' losses with the defendant's future ability to pay."
Based upon our review, the trial judge did not mistakenly exercise his discretion.
Affirmed. The matter is remanded solely to conduct a hearing on the proper amount of jail time credits due to defendant and for any necessary correction of the JOC. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION