October 22, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN S. LOPEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Number 04-03-560.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 30, 2009
Before Judges Collester and Fall.
Defendant John S. Lopez appeals from that part of the sentence imposed requiring him to pay restitution in the amount of $281.40 for the costs of his extradition.*fn1 The following factual and procedural history is relevant to our consideration of the issue presented on appeal.
On or about March 17, 2004, defendant was charged in Monmouth County Indictment Number 04-03-560 with first-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count three); second-degree possession of a weapon, a firearm, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, a handgun, contrary to N.J.S.A. 2C:39-5b (count five); and fourth-degree possession of a weapon, a firearm, by a prohibited person, contrary to N.J.S.A. 2C:39-7a (count six). The indictment alleged that the criminal acts charged occurred on or about July 29, 2003. His co-defendant, Maloy Amador, was also charged in these six counts of that indictment. Co-defendant Tara Jones was charged in the seventh count of that indictment with third-degree hindering the apprehension of defendant, contrary to N.J.S.A. 2C:29-3.
By letter to the Criminal Case Manager's Office dated June 15, 2004, the Monmouth County Prosecutor's Office advised that it had incurred $281.40 in costs for the extradition of defendant from Indian Creek Correctional Facility in Chesapeake, Virginia, and requested that "this information be included as a part of the Presentence Report on this case so that the State can be reimbursed for the cost of extraditing this defendant" in accordance with the provisions of N.J.S.A. 2C:43-3.4, which provides:
In addition to any fine or restitution authorized by N.J.S.A. 2C:43-3, the court may sentence a defendant to make restitution for costs incurred by any law enforcement entity in extraditing the defendant from another jurisdiction if the court finds that, at the time of extradition, the defendant was located in the other jurisdiction in order to avoid prosecution for a crime committed in this State or service of a criminal sentence imposed by a court of this State. [Emphasis added.]
On August 12, 2004, in accordance with an executed plea agreement, defendant entered a plea of guilty to counts one and two of the indictment, charging him with first-degree conspiracy to commit murder and first-degree attempted murder. In exchange, the State agreed to request dismissal of the remaining charges against defendant in the indictment, and to recommend that he receive a maximum sentence of thirteen years' imprisonment, subject to an eight-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also agreed to testify truthfully in the trial of his co-defendant, Maloy Amador, if necessary. The plea agreement did not reference the State's claim for restitution of the extradition costs, and that matter was not raised or referenced during the plea hearing.
The Adult Presentence Report prepared prior to sentencing contained a copy of the June 15, 2004 letter requesting restitution for the extradition costs, but did not otherwise reference the issue of restitution. The presentence report did reflect defendant's financial status as having no income and debts of $6,500.
Defendant was sentenced in the Law Division on March 9, 2007, in accordance with the plea agreement. The judge merged count one of the indictment with count two and imposed a term of imprisonment of thirteen years, subject to a NERA parole disqualifier and five-year period of parole supervision upon release; the remaining counts in the indictment against defendant were dismissed. The judge also imposed mandatory penalties of $100, Victim Crime Compensation Board (VCCB); $75, Safe Neighborhood Services Fund assessment; and $30, Law Enforcement Officers Training and Equipment Fund assessment. The issue of restitution was not addressed. However, the judgment of conviction entered on March 9, 2007, reflected a requirement that defendant pay the $281.40 in restitution requested by the State in its June 15, 2004 letter.
On June 25, 2007, defendant filed a notice of appeal from the sentence imposed. The sentencing appeal was argued before this court on March 31, 2009 pursuant to R. 2:9-11, and an order was entered on that date, affirming the sentence imposed, as reflected in the judgment of conviction. On or about April 8, 2009, defendant filed a motion seeking reconsideration of that portion of the judgment of conviction requiring him to pay restitution to the State for the extradition costs. By order entered on April 23, 2009, we vacated our March 31, 2009 order, and directed the Clerk to place this appeal on a plenary calendar and establish a briefing schedule.
On appeal, defendant presents the following argument for our consideration:
THE RESTITUTION IMPOSED ON DEFENDANT MUST BE VACATED BECAUSE THE COURT GAVE NO REASONS AND FAILED TO CONDUCT A HEARING ON THE DEFENDANT'S ABILITY TO PAY.
Defendant first argues that N.J.S.A. 2C:43-3.4 is inapplicable because he was brought to New Jersey from Virginia, where he was serving a prison term, pursuant to the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15, and therefore he was not located in Virginia "in order to avoid prosecution for a crime committed in" New Jersey. We disagree. During the plea hearing, under questioning by his counsel, defendant acknowledged that he had fled the scene following the July 29, 2003 incident, going first to Brooklyn, New York, and then to Norfolk, Virginia. Clearly, he had fled New Jersey to avoid prosecution for the crimes charged in this indictment. The fact that he was charged with and convicted of crimes in Virginia, and was serving a prison sentence in Virginia when located by New Jersey authorities, and then extradited, does not change the fact that he had fled New Jersey to avoid prosecution. Accordingly, in these circumstances, we find N.J.S.A. 2C:43-3.4 to be fully applicable.
Defendant also argues that the imposition of restitution, summarily, without conducting a hearing, constitutes error. We agree. The enactment of L. 1997, c. 253, § 4, codified as N.J.S.A. 2C:43-3.4, appears to have been a reaction to our decision in State v. Wildman, 296 N.J. Super. 565 (App. Div. 1997) where we held that in the absence of statutory authority, a sentencing judge may not impose restitution for the purpose of recovery of the costs of transporting a defendant to New Jersey from another jurisdiction. Id. at 566. However, as with restitution ordered pursuant to the authority set forth in N.J.S.A. 2C:43-2b and N.J.S.A. 2C:44-2a, the authority for imposition of restitution for extradition costs contained in N.J.S.A. 2C:43-3.4 is discretionary with the court, and requires a hearing to consider, inter alia, the ability of defendant to pay or, if given a fair opportunity, his future ability to pay restitution, see N.J.S.A. 2C:44-2b(2), the financial resources of the defendant and the nature of the burden that its payment will impose, as well as the defendant's likely future earnings, see N.J.S.A. 2C:44-2c. See also State v. Smith, 307 N.J. Super. 1, 15-16 (App. Div. 2007), certif. denied, 153 N.J. 216 (1998) (finding that imposition of restitution without conducting a hearing constituted error).
Other than the imposition of restitution, we are satisfied that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. Natale, 184 N.J. 458 (2005); State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383; State v. Roth, 95 N.J. 334 (1984). The judgment of conviction and sentence imposed is, in all respects other than restitution, affirmed and the matter is remanded solely for a restitution hearing and the resulting entry of an amended judgment of conviction. See State v. Corpi, 297 N.J. Super. 86, 94 (App. Div.), certif. denied, 149 N.J. 407 (1997).
Affirmed and remanded.