July 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILBERT BROWN A/K/A WILBERT BROWN, SR., WILBURT BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No.: 03-01-0152.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2007
Before Judges Collester, Sabatino and Lyons.
Defendant, Wilbert Brown ("Brown"), appeals his conviction for the December 8, 2001 murder of victim, Altagracia Aponte ("victim" or "Grace"). The following factual and procedural history is relevant to the issues advanced on appeal.
In the early morning hours of December 9, 2001, the body of forty-four year old victim was discovered by a neighbor lying on the grass of the Leonia condominium complex where she lived. Police and EMS arrived and attempted to revive her. She had been shot three times, once in the chest, once in the upper neck, and once directly on top of the skull. She was transported to Englewood Hospital and was pronounced dead.
Defendant resided at the same condominium complex as victim and had been romantically involved with her for four years.
They separated a few months before the murder. On the night that victim's body was discovered, defendant arrived at the crime scene, spoke to Leonia Police Officer Murphy and inquired about the crime. Before the officer made any reply, defendant stated that he had just returned from New York City because he had to water the plants at his mother's apartment. Officer Murphy replied, "who cares," and said nothing else to defendant. He believed that defendant appeared "very nervous" at the crime scene and looked for him after victim was taken to the hospital.
A police investigation commenced and defendant was interrogated on December 9, 2001. During questioning, defendant admitted that he and victim dated, that they mutually separated in July or August 2001 and that he was not angry over the breakup. Defendant stated that he did not follow victim after their separation and that the two had a friendly relationship. Defendant told police that he had last seen victim on Thanksgiving Day but later recalled that two days prior to Thanksgiving, in the early hours of the morning, he had confronted victim near the laundry room of the complex wearing rubber gloves and made derogatory comments to her.
During questioning, defendant stated that on the early afternoon of December 8, 2001, he drove to New York City to have paperwork witnessed for him, returned home to New Jersey, watched television, and later in the evening, returned to New York.*fn1 Defendant explained that he returned to New York City in the evening to pick up a rent check from a friend to whom he had sublet his late mother's apartment, to water the plants and to check on the plumbing. Defendant stated that he left New York City after midnight, returned home, observed the scene at the complex and was told by someone that victim had been shot.
Defendant permitted police to search his automobile, van and apartment. During the search of defendant's automobile, police found an inoperable EZ-Pass in the glove compartment. Police noted that the van was parked near the area where the victim had been murdered. Items seized from defendant's home included a leather holster without a gun, found in defendant's bedroom, and a micro-cassette from his bedroom dresser. Defendant told detectives that he made the tape and "said some bad things about Grace."
On the tape, defendant repeatedly stated that he wanted to resume his relationship with victim, that she rejected him and that he was angered by her courting other individuals. Defendant also expressed that he knew more about her life than she thought he did, described her companions and the vehicles they drove, and noted places she visited. Moreover, the cassette contains several threatening messages, including that victim's "fate was sealed," that she would "have to pay the piper" and that she "will get [her] due."
Witnesses at trial corroborated the messages contained in the cassette. Victim's son testified that victim received hostile phone calls in the evenings and, "more times than not, it was [defendant]." Victim's son also indicated that he received calls from defendant inquiring into victim's whereabouts. In addition, a co-worker of defendant's provided detectives with a notebook defendant had dropped at work which contained two handwritten license plate numbers that referenced vehicles owned by a male companion of victim's, Dr. Robert Gaskin ("Dr. Gaskin").
Dr. Gaskin testified that he occasionally had dinner with victim, that the last time he saw her was on December 7, 2001 and that on this date, she appeared anxious and scared. Victim told Dr. Gaskin that she was thinking about relocating.
During the police investigation, police obtained defendant's mobile phone records. According to the records, a call was made from defendant's mobile phone at 6:19 p.m. on December 8, 2001 near the North Bergen residence of victim's boyfriend, Rafael Perez ("Perez"). At about that time, victim met Perez at his home. The police investigation revealed that victim returned home to the condominium complex between 1:00 to 1:15 a.m. the next morning and was shot shortly thereafter.
Defendant was arrested on November 29, 2002. He was indicted by a Bergen County grand jury and charged with murder, in violation of N.J.S.A. 2C:11-3a(1) (count one) and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (count two). Trial was held before a jury from October 12, 2004 through October 27, 2004.
At trial, an FBI expert in firearm and toolmark identification testified that the gun housed in the holster taken from defendant's bedroom was a .25 caliber Titan pistol. A Bergen County Sheriff's officer who is an expert in firearm identification testified that such a pistol could have been used to kill the victim. Defendant did not testify at trial.
At the conclusion of trial, the jury convicted defendant on all counts. He was sentenced to a life term on the murder conviction, with a parole bar of thirty years. The court imposed a sentence of seven years with a five-year parole bar on count two as well as a fine of $100,000 and restitution in the amount of $25,000. Four months later, the court entered an amended judgment of conviction including a NERA portion of the life sentence and merged count two into count one. A notice of appeal was filed on defendant's behalf.
On appeal, defendant raises the following arguments for our consideration:
THE TRIAL JUDGE ERRED IN PERMITTING A REFERENCE TO "SEARCH WARRANT" TO BE HEARD BY THIS JURY. (Not Raised Below).
POINT II: THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
THE FINE ASSESSED BY THE TRIAL JUDGE IS EXCESSIVE.
We begin our analysis of the issues presented by addressing the arguments of defendant and the applicable legal standards.
During trial, Sergeant Lynn Morrissey ("Morrissey") of the Bergen County Prosecutor's Office testified that she had been involved in the murder investigation. The prosecutor questioned Morrissey with regard to the officers' search of a jacket allegedly worn by defendant on the night of the murder as follows:
Q: You indicated that there was a jacket that Mr. Brown had given to the police back in December. Can you look at what's in that bag and see if you can identify that?
Q: And what is that?
A: It's a blue jacket.
Q: And can you take it out please? And could you hold it up flat for the jury?
Now, when you interviewed residents around the complex, did they indicate that this was the jacket that Mr. Brown had been wearing that night?
A: No, they did not.
Q: What - - how did they describe the jacket?
A: They described it as a dark-color bomber-style jacket.
Q: What did you do to attempt to conduct another search?
A: I applied for a re-search warrant.
Q: And, other than what you just described, that is the different-color jacket that you learned about, what was the other reasons for conducting another search this many months later?
A: Looking for the weapon, the - - the gun, looking for any other evidence for this case.
Q: And was it your intent to also search Storage Room No. 2, the one you've described that was empty?
Q: However, you didn't attempt to search that once you discovered it was empty, did you?
A: That's correct.
Q: And so did you apply for and receive a court-authorized search warrant?
A: Yes, I did.
Q: And unlike a consent search where a defendant consents to the search, this was court-authorized. Is that right?
A: That's correct.
Defendant argues that through Morrissey's testimony concerning the search warrant, the prosecutor attempted to demonstrate that unlike past searches where defendant had given his free consent, the judiciary had to become involved in the search for the jacket. Defendant states that he was deprived of a fair trial and his right to due process because the testimony as to the search warrant was prejudicial and irrelevant. The State contends that Morrissey's testimony on the search warrant had no capacity to lead to an unjust result and was admissible.
Defendant did not object to Morrissey's references to the search warrant or request a cautionary instruction. Therefore, defendant would be entitled to a new trial only if those references were clearly capable of producing an unjust result.
R. 2:10-2; State v. McDonough, 337 N.J. Super. 27 (App. Div.), certif. denied, 169 N.J. 605 (2001). We find that the references made to the search warrant were insufficient to produce an unjust result.
The Supreme Court has acknowledged that a prosecutor's inquiry into search warrants is permissible. In State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997), the Court reasoned that, "a properly instructed jury will not presume guilt based on the issuance of a search warrant . . . the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." In addition, we have held that where references to warrants and searches "[do] not imply that the State had presented any evidence to the issuing judge that was also not heard by the jury," the jury "does not have to be 'shielded from knowledge that . . . warrants have been issued in a criminal matter . . .'" McDonough, supra, 337 N.J. Super. at 34-35 (quoting Marshall, supra, 148 N.J. at 240).
Defendant relies upon State v. Milton, 255 N.J. Super. 514 (App. Div. 1992) and State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999), to argue that the prosecutor's references to the search warrant were improper. However, while both of these cases keep out search warrant evidence, they are distinguishable from the case at hand. Milton, for example, concerned a conviction for possession of cocaine. The prosecutor in that case commented on the existence of a never-executed search warrant for defendant's person in both his opening statement and by eliciting testimony from the State's investigator. 255 N.J. Super. at 519. Defense counsel objected to the remark, moved for a mistrial and throughout trial preserved his objection. Ibid. In that case, we found that the reference to the never-executed search warrant for defendant's person was irrelevant and prejudicial, because the search warrant for the premises alone was enough to prove that the police had not acted arbitrarily in searching the premises. Id. at 520. Thus, unlike in the instant matter, the prosecutor's reference to the search warrant in Milton was improper because it was misleading to the jury. See Marshall, supra, 148 N.J. at 240. In this case, defendant does not allege that the prosecutor's comments were misleading.
Factors such as whether defense counsel made a timely objection, whether the remark was withdrawn properly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them, may be utilized to determine whether the right to a fair trial has been denied. State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). Unlike in Milton, defendant did not object to the testimony, did not seek a limiting instruction from the court, and did not view such testimony as unduly prejudicial at the time it was made. The trial judge neither saw a need to strike the remarks nor to instruct the jury to disregard them. Thus, the limited references to the search warrant were not improper.
Defense counsel also relies on Alvarez to argue that the search warrant testimony was improper. Alvarez, however, is distinguishable from this case as well. In Alvarez, "two warrants were paraded before the jury . . . a Parole Board arrest warrant and a search warrant." 318 N.J. Super. at 145. During the trial in Alvarez, "in addition to the three references to an arrest warrant for defendant, six references to a search warrant (described as being issued by a judge) came directly out of the mouth of the prosecutor." Id. at 147. No such excessive use of search warrant evidence occurred in this case. The record reveals that the prosecutor's comments on the search warrant in this matter were limited and reasonably made to determine how the jacket was obtained and to trace the course of the police investigation. Unlike in Alvarez, the prosecutor did not set out to prosecute defendant with numerous and injurious references to arrest and search warrants.
Moreover, consistent with the tenets of McDonough, there was no implication that the issuing judge was privy to any prejudicial information not heard by the jury. The jury was presented with sufficient evidence not to be misled by references to the search warrant. The record indicates that at trial, the jury had the opportunity to consider a significant amount of evidence, both testimonial and non-testimonial in nature. Since the references to the search warrant were not clearly capable of producing an unjust result under R. 2:10-2, defendant was not denied a fair trial or his due process rights.
Defendant next argues that the jury's verdict must be set aside because it constitutes a miscarriage of justice, given the lack of a confession by defendant, eyewitnesses, and forensic evidence linking defendant to the murder. Defendant also discounts the importance of the evidence produced by the State at trial, particularly the gun holster and the taped messages. He contends that the holster could have held any number of guns and that the messages contained no direct threats against the victim. The State argues that it placed overwhelming evidence before the jury and that the verdict was supported by the proofs.
The appellate court will not consider an argument that a jury verdict is against the weight of the evidence unless the appellant moved for a new trial on that ground. R. 2:10-1; Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div.), aff'd, 65 N.J. 45 (1974). In this case, defendant moved for a new trial at sentencing on the ground that the verdict was against the weight of evidence. Defendant's motion was denied. We find that the verdict rendered was not against the weight of the evidence and that the trial court did not err in denying defendant's motion.
R. 3:20-1 states in relevant part:
[t]he trial judge . . . shall not set aside the verdict of the jury as against the weight of evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
Similarly, R. 2:10-1 holds that the trial court's decision on a motion for a new trial, "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." To decide whether there was a clear miscarriage of justice, a reviewing court defers to the trial court with respect to the "'feel of the case' element possessed by the trial judge" but otherwise makes its own independent determination of whether a clear miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). If the appellate court decides that a verdict in a criminal case is against the weight of the evidence, acquittal is not mandated, even though a reversal based on insufficient evidence does require acquittal. Tibbs v. Florida, 457 U.S. 31, 42-43, 102 S.Ct. 2211, 2218, 72 L.Ed. 2d 652, 661-62 (1982). A clear miscarriage of justice did not occur in this case.
Defendant contends that the State failed to produce sufficient direct evidence to convict him beyond a reasonable doubt. While there is a lack of direct proofs such as a confession, certain forensic evidence such as fingerprints, DNA or the like, or evidence of the gun, there is sufficient proof in the form of testimony and material evidence, such as the messages, defendant's behavior the night of the murder, and his testimony to police, tying defendant to the crime. It has long been held that, "in proper circumstances, circumstantial evidence alone affords a sufficient basis to sustain a criminal conviction." State v. Pipkin, 101 N.J. Super. 598, 601 (App. Div.), certif. denied, 52 N.J. 484 (1968). "[I]ndeed, in many situations circumstantial evidence may be 'more forceful and more persuasive than direct evidence.'" State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). In this case, the evidence produced by the State implicates defendant in the crime by demonstrating his means, motive and opportunity to commit the murder.
The evidence of the handgun holster demonstrates the means that defendant utilized to commit the murder. The victim in this case was killed with a .25 caliber handgun. Expert toolmark testimony established that the empty holster found in defendant's bedroom held a .25 caliber Titan gun, one of the guns that expert ballistic testimony said could have been used to kill the victim. A review of the testimony from the firearm experts reveals that their determinations were made after a thorough examination of the holster, bullet shells and after the elimination of numerous alternative weapons. Thus, the testimonial evidence from these experts was reliable and the trial court did not err by relying on same.
The cassette messages reveal defendant's motive for committing the murder. They demonstrate that contrary to defendant's original statements to the police, defendant and victim had a staggered and troubled relationship. The messages disclose that defendant intended to harass the victim while she was alive, that he often followed her and her companions wherever they traveled, and that defendant was angered by the victim socializing with other individuals.
Contrary to defendant's claim that the messages contain no direct threat of physical violence, in fact, the messages contain expressions of promised, unavoidable vengeance, anger, and hatred of the victim which establish defendant's state of mind and his intent to kill the victim. Moreover, defendant's prior encounters with the victim, particularly the encounter in November 2001 when defendant approached victim during early morning hours wearing rubber gloves and yelling expletives at her reveal that defendant was not hesitant to approach the victim and intimidate her. The victim's son testified that victim would often receive antagonistic phone calls from defendant. Such prior acts of hostility and threats have been considered, "highly relevant with respect to the issue of motive and its probative value . . . " State v. Engel, 249 N.J. Super. 336, 373-74 (App. Div.), certif. denied, 130 N.J. 393 (1991). In addition, "evidence of arguments or violence between a defendant and a homicide victim has long been admitted." Id. at 374; State v. Ramseur, 106 N.J. 123, 267 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993); State v. Mulero, 51 N.J. 224, 228-29 (1968); see also State v. Schuyler, 75 N.J.L. 487, 488 (E. & A. 1907) (holding that, "[l]ong-continued animosity and ill-will are better evidence of a state of mind which will ripen into deliberate murder than the hasty ebullition of passion.") Thus, there was sufficient evidence of defendant's motive in murdering the victim.
There was also sufficient evidence introduced regarding his opportunity to kill. It was presented at trial that defendant was a resident of the condominium complex where the murder occurred, that he was a member of the condominium's board and had keys to all common areas, and was thoroughly familiar with the area where victim was killed. Such evidence established that defendant executed a plan to murder the victim and quickly escaped undetected thereafter. Moreover, the evidence that none of the victim's possessions were taken or destroyed demonstrates that the offender took the opportunity to commit the crime not for purposes of a robbery or a sexual assault, but to purposefully kill the victim as she was arriving from the home of one of her companions.
The verdict is further supported by defendant's conduct leading up to his arrival at the crime scene. Although defendant had EZ-Pass records for tolls going into New York City, there is no record indicating when defendant returned to New Jersey. Defendant then appeared at the crime scene while others were trying to save the victim and almost immediately informed an officer that he had been watering plants in New York City. Such nervous conduct at the crime scene demonstrates defendant's consciousness of guilt. Additionally, much of the testimony defendant gave to police on the morning of the murder was inaccurate. Defendant stated that he and victim had a good, friendly relationship, when the messages reveal this was not the case. Defendant told police that he neither followed the victim nor knew about her boyfriends, but evidence from his co-worker showed this was not accurate. In fact, defendant had license plate numbers of victim's companions written in a notebook.
The jury had an opportunity to evaluate the many witnesses presented at trial as well as the evidence introduced. Although there was a lack of forensic evidence and no weapon produced, there was sufficient proof linking defendant to the murder, beyond a reasonable doubt. The trial judge, who had the opportunity to evaluate the feel of the case, felt similarly. Reviewing the record anew, we conclude that the verdict was not against the weight of the evidence.
We next analyze the issue of whether the sentence imposed was excessive. At sentencing, the judge found aggravating factors N.J.S.A. 2C:44-1(a)(1)(the nature and circumstances of the offense), (a)(2)(the gravity and seriousness of harm inflicted on the victim), (a)(3)(the risk that defendant will commit another offense), (a)(6)(the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), (a)(9)(the need for deterrence), and (a)(11)(the imposition of a fine or penalty without imprisonment would be perceived merely as part of the cost of doing business). The judge also found one mitigating factor, N.J.S.A. 2C:44-1(b)(11)(the imprisonment would entail excessive hardship to himself or his dependants). A life sentence was then imposed.
Defendant argues on appeal that the sentencing court focused on victim's death and inappropriately double-counted an element of the crime. Defendant also argues that his prior record should have led to the finding of an additional mitigating factor, that defendant is at low risk to re-offend in the future and that no legitimate reason exists to support a sentence of more than the minimum term of thirty years in prison. The State argues that while "some of the sentencing court's remarks and findings cannot be squared with controlling caselaw," the "sentence imposed constitutes defendant's just deserts."
"Sentencing discretion under the Code [of Criminal Justice] involves an interplay between the degree of crime on one hand and application of aggravating and mitigating factors on the other." State v. Sainz, 107 N.J. 283, 287 (1987). Aggravating and mitigating factors are used to insure that sentencing is individualized without being arbitrary. Id. at 288. To provide an intelligible record for review, the trial court should identify the aggravating and mitigating factors, describe the balance of those factors, and explain how it determined defendant's sentence. State v. Kruse, 105 N.J. 354, 360 (1987).
In contrasting the respective roles of trial and appellate courts in evaluating aggravating and mitigating factors, the Supreme Court held that:
A trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence. Kruse, supra, 105 N.J. at 359-60; State v. Roth, 95 N.J. 334, 359-60 (1984). The role of the appellate court is different. It does not sit to substitute its judgment for that of the trial court. An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances the aggravating and mitigating factors that are supported by competent credible evidence in the record. State v. Jarbath, 114 N.J. 394, 400-01 (1989).
Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience. Roth, supra, 95 N.J. at 365. [State v. O'Donnell, 117 N.J. 210, 215-16 (1989).]
The sentence imposed must reflect the Legislature's intention to focus on the degree of the crime itself as opposed to other factors personal to the defendant. State v. Hodge, 95 N.J. 369, 377 (1984). In reviewing a sentence, the appellate court can:
(a) review sentences to determine if the legislative policies . . . were violated;
(b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and
(c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience. [Roth, supra, 95 N.J. at 364-65.]
The fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record. Id. at 365-66; O'Donnell, supra, 117 N.J. at 216. Courts should consider a defendant's role in the incident to determine the need to deter him from further crimes and the corresponding need to protect the public from him. State v. Evers, 175 N.J. 355, 394 (2003).
Defendant's first argument is that his sentence should be modified because the court inappropriately double-counted the criminal element of death when it applied aggravating factors (a)(1) and (a)(2). It is well-settled, and the State concedes, that, "where the death of an individual is an element of the offense, that fact cannot be used as an aggravating factor for sentencing purposes." State v. Carey, 168 N.J. 413, 425 (2001); State v. Pineda, 119 N.J. 621, 627 (1990). Therefore, the death of the victim alone cannot be utilized to support aggravating factors (a)(1) and (a)(2). It has also been held however, that such aggravating factors may be applied where the trial court does "not rely on the [victim's] deaths alone to establish the gravity and seriousness of harm aggravating factor." Carey, supra, 168 N.J. at 425.
In this case, the sentencing judge did not rely solely upon the victim's death to support the aggravating factors, but considered the nature of defendant's conduct in addition to the victim's death. In evaluating both the nature of the offense and the seriousness of the harm, the sentencing transcript reflects that the judge considered defendant's "obsessive behavior" toward the victim, his long-term "stalking of her," his "various messages as to the license plates," as well as the "deliberate manner in which [defendant] murdered Ms. Aponte." The judge also considered the method in which defendant committed the murder, "shooting this defenseless woman at close range in the heart, in the neck and through the skull", and called the crime, "so horrific that it calls out for a maximum penalty." The sentencing judge did not rely on the death of the victim alone in considering the aggravating factors but based his application of the factors upon competent, credible evidence. Accordingly, the application of (a)(1) and (a)(2) did not render a sentence shocking to the judicial conscience.
Defendant next argues that the court inappropriately applied (a)(3) because it is arguably applicable to every criminal defendant. He also submits that the court should not have applied (a)(6) and (a)(9) because he is sixty-two years old and unlikely to re-offend. Defendant also argues that the application of (a)(11) was improper because he was incarcerated.
We find that the court properly applied (a)(3), risk of future offenses, (a)(6), prior record and (a)(9), the need to deter. The sentencing record reveals that defendant has a prior history of stalking women. In addition to stalking the victim in this case, he stalked a previous girlfriend who obtained a permanent restraining order against him. Out of fear of defendant, this individual requested that her name not be used during sentencing and refused to appear in court. The judge properly concluded that defendant would likely commit another offense and that his prior count of harassment was sufficient to apply the aggravating factors in dispute. Moreover, as to the need to deter, the trial judge recognized that, "[i]f there was ever a situation that called out of a need to deter, it is this case." The trial judge considered defendant's history, the gravity of the offense, and the competent evidence presented and properly applied (a)(3), (a)(6) and (a)(9).
Aggravating factor (a)(11), however, was not properly applied by the sentencing judge. We have held that factor to be inapplicable, "unless the sentencing judge is balancing a non-custodial term as against a state prison sentence . . . [ordinarily,] factor (11) should not be utilized in sentencing for first and second degree crimes." State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd, 175 N.J. 612 (2003). In this murder case, therefore, (a)(11) is not implicated. Accordingly, this matter is remanded so that the sentence imposed may be reevaluated so as to omit aggravating factor (a)(11).
We next discuss the issue of whether the fine imposed by the court is excessive. Defendant urges the court to vacate the fine on the grounds that the sentencing judge failed to consider whether defendant could pay it and did not provide reasoning for its imposition. The State argues that the fine is not excessive and that the sentencing judge "clearly implicitly addressed" the statutory considerations before he imposed the fine.
Under N.J.S.A. 2C:44-2(a), the court may sentence a defendant to pay a fine in addition to a sentence of imprisonment if it determines that:
1. The defendant has derived a pecuniary gain from the offense or the court is of opinion that a fine is specially adapted to deterrence of the type of offense involved or to the correction of the offender;
2. The defendant is able, or given a fair opportunity to do so, will be able to pay the fine; and
3. The fine will not prevent defendant from making restitution to the victim of the offense.
N.J.S.A. 2C:44-2(c)(1) provides that, in determining the fine's amount and method of payment, "the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose." In addition, "[t]he court is required to state on the record the reasons for imposing the sentence, 'including [its] findings pursuant to the criteria for withholding or imposing imprisonment or fines under N.J.S.A. 2C:44-1 to 2C:44-3.'" State v. Ferguson, 273 N.J. Super. 486 (App. Div.), certif. denied, 138 N.J. 265 (1994) (quoting R. 3:21-4); see also State v. Pindale, 249 N.J. Super. 266, 289 (App. Div. 1991), certif. denied, 145 N.J. 449 (1995), certif. denied, 168 N.J. 290 (2001); State v. Newman, 132 N.J. 159, 170 (1993); State v. Harris, 70 N.J. 586, 599 (1976).
The fine of $100,000 imposed by the court in this case was within the statutory maximum of $200,000 permitted by statute. See N.J.S.A. 2C:43-3. However, we conclude that it does not meet the statutory requirements of N.J.S.A. 2C:44-2(a).
The sentencing transcript indicates that the sentencing judge found the crime especially heinous and believed that a fine was proper to punish, deter, and correct defendant.
N.J.S.A. 2C:44-2(a)(1). The sentencing court erred, however, when the judge failed to properly evaluate defendant's ability to pay the substantial fine imposed. In determining the fine, the judge relied on tax returns which he "presumed were filed in good faith." The tax returns indicated that defendant had an income of $28,000. In addition to this income, the sentencing judge cited defendant's sale of his condominium. The sentencing judge, however, was never given, and never evaluated financial closing statements from the sale and was never able to determine the net proceeds available to defendant from the sale or any other outstanding liabilities he had.
At the time the fine was imposed, the sentencing judge expressed that he "was not in a good position to be in" because he "was left to pretty much work through these tax returns and if [he] didn't ask for the tax returns, [he] would have no information." The sentencing judge also acknowledged that, "[t]he [c]court has been left with no explanation as to the whereabouts of those funds or the various bank accounts that were listed on the tax returns," yet relied on the returns anyway to impose the $100,000 fine. At no point did the sentencing judge clearly explain how he arrived at this figure or clarify how the fine was fair or reasonable. Accordingly, the court did not satisfy the second statutory requirement under N.J.S.A. 2C:44-2(a) or R. 3:21-4. This matter, therefore, is remanded so that information regarding defendant's assets, liabilities, income and expenses can be appropriately considered by the court and a proper fine imposed.
Affirmed, but remanded for resentencing as to aggravating factor (a)(11) and for a redetermination of the fine imposed.