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Interest of M.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 12, 2011

INTEREST OF M.M., A JUVENILE.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-2429-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

STATE OF NEW JERSEY IN THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 4, 2011

Before Judges Alvarez and Ostrer.

Marc Miller*fn1 appeals from a juvenile adjudication of delinquency. The Family Part determined that Miller committed a theft of jewelry valued between $500 and $75,000, contrary to N.J.S.A. 2C:20-3. On December 3, 2009, after the juvenile waived preparation of a pre-disposition report, the court sentenced Marc to one year probation, a substance abuse evaluation, mandatory fees and penalties. As a condition of probation, Marc was ordered to pay the victim's insurer $5000 in restitution. In a later order, the court set a payment schedule of $50 a month for one year, and $100 a month thereafter.

We briefly summarize the salient facts supported by the trial evidence. The stolen jewelry was the property of Marilyn Starr, the grandmother of Marc's former girlfriend, Emily Caine (Emily). The Starr household included Starr and her husband, their daughter Rochelle Caine (Caine) and her husband, and Emily and her sibling. Emily and Marc were friends as pre-teens and had dated for two years before breaking up in September 2008. Thereafter, until October 2008, Marc was still often present in the Starr home. Starr treated him as a "grandson."

During the period when the jewelry was found to be missing, Marc enjoyed unfettered access to the victim's bedroom area where she stored her jewelry, and the kitchen, where she often removed her rings and placed them in a cup while cooking. Marc had expressed curiosity about the jewelry and discussed its value with the victim. Barry Chalmers, a friend of Marc's, testified that Marc asked him to take him to a pawnshop to pawn items of jewelry. Barry admitted to Caine that he had taken Marc to the pawnshop and was able to describe some of the pieces of jewelry. Caine also testified that Marc apologized to her for claiming that Barry stole the jewelry.

Police initially presented the pawnshop owner with photographs of Marc, and no one else.*fn2 Without disclosing the purpose of his inquiry, the officer asked the owner if he recognized the person depicted. The shop owner identified Marc as someone who previously had been to his shop on more than one occasion to sell jewelry. In a later interview about Marc, the police officer presented the shop owner with a drawing of a bracelet decorated with a horse image, one of the distinctive items that Starr claimed was stolen. The officer asked the shop owner if he recalled seeing a bracelet like that. The shop owner recalled that Marc had sold such a bracelet.

Marc raises the following points on appeal:

POINT I

THE LOWER COURT ERRED IN ADMITTING EVIDENCE OF THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION OF DEFENDANT BY ELISHA REESE AND THE RESULTING TAINTED IN-COURT IDENTIFICATION, THEREBY DENYING DEFENDANT DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, pars. 1 and 10).

POINT II

THE LOWER COURT ERRONEOUSLY ADMITTED INTO EVIDENCE PREJUDICIAL HEARSAY STATEMENTS WHICH WERE NOT ADMISSIBLE UNDER N.J.R.E. 803(C)(3).

POINT III

THE LOWER COURT FAILED TO CONDUCT A RESTITUTION HEARING TO ASSURE THAT M.M., A JUVENILE, COULD PAY $5000.00 IN A ONE-YEAR TIME PERIOD.*fn3

We have reviewed these points in light of the record and the applicable law. We find no basis to upset the adjudication of delinquency based on the court's evidentiary rulings. However, we do agree that there was insufficient evidence in the record to support the court's order of restitution. We will address Marc's arguments in turn.

I. In determining whether an identification should be excluded, under the current standard,*fn4 a court must "first . . . ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). A court must consider the "totality of the circumstances" and weigh, against the corrupting effect of the suggestive procedure, five factors: "'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Id. at 506-07 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). A trial court's reliability finding is entitled to great weight, and shall not be upset if supported by sufficient credible evidence. State v. Adams, 194 N.J. 186, 203 (2008).

The juvenile argues that the presentation of photographs of him alone to the pawnshop owner at the first interview was impermissibly suggestive. He also argues that it was impermissibly suggestive for police to request an opportunity to discuss "the case" involving Marc, to present the drawing of the horse bracelet, and to ask whether Marc had sold that bracelet.

Although single-photograph displays may be viewed generally with some suspicion, a court may find under particular circumstances that they are not impermissibly suggestive. Manson v. Brathwaite, supra, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155. In this case, there was sufficient evidence in the record for the trial court to conclude that, under the totality of the circumstances, presenting only Marc's photographs was not impermissibly suggestive.

The shop owner was not a victim of a crime and did not have the interest of a crime victim in securing an arrest. Although the shop owner might reasonably have suspected that a crime had been committed simply based on the police inquiries, the police did not disclose their suspicions about Marc. In a significant sense, then, the shop owner did not identify a suspect at all; he simply stated that he recognized an individual.

In United States v. Jones, 652 F. Supp. 1561, 1570 (S.D.N.Y. 1986), the court persuasively distinguished between recognition and identification. As in this case, police asked a disinterested third-party witness if she recognized a person without disclosing the purpose of the inquiry.

Niemeyer [the investigating officer] simply showed Crouch [the third-party witness] a photograph and asked her if she recognized the subject for any reason. Crouch was free to answer "yes" or "no." The fact that she was shown only one photograph in no way "suggests," that is to say, tends to elicit, an affirmative response. We deal here with recognition in its most general sense. There is a quantum difference between that process and identification for a particular purpose, such as the identification of a perpetrator by his victim. [Ibid.]

The court also found it inconsequential that the employee likely surmised that the person depicted was a possible suspect. "If anything, Crouch's awareness of Niemeyer's general purpose would likely cause her to be careful before saying she recognized the man in the photograph." Ibid. We agree with that reasoning.

Nor was it impermissibly suggestive for the police, at a second interview, after announcing a desire to discuss Marc's case, to present the drawing of the horse bracelet and inquire whether the shop owner recognized the item. The shop owner had already recognized Marc as someone who had sold jewelry. The identification at the second interview focused on the jewelry, not the person. However, the limitations on impermissibly suggestive identification procedures, grounded in notions of due process, generally pertain to the identification of people, not things. State v. Delgado, 188 N.J. 48, 66-67 (2006).*fn5

Moreover, there was sufficient evidence in the record to support the trial court's finding that the shop owner's identification was reliable. Among other factors, he had the opportunity to view Marc face-to-face in his own business establishment, and transacted business with him recently on multiple occasions. See State v. Adams, supra, 194 N.J. at 204 (discussing factors that should be considered in determining reliability). In sum, we discern no error in the admission of the shop owner's identification of the juvenile.

II. The juvenile also argues that the trial court erroneously admitted into evidence three hearsay statements: (1) that certain young people who visited the Starr household said they were looking for money from Marc; (2) that certain people said that Marc had committed the theft; and (3) that certain people said that Marc had accused Barry of committing the theft. The trial court's evidentiary rulings are entitled to substantial deference. State v. Morton, 155 N.J. 383, 453 (1998).

Starr testified that certain young persons came to her house stating that they were looking for Marc, they wanted money from him, and they intended to harm him. We discern no error in the trial court's ruling that these statements were admissible because they related to the declarants' "then existing state of mind," specifically their "intent, plan, motive, [or] design" in going to the Starr home in search of Marc. See N.J.R.E. 803(c)(3). The statements were relevant because they tended to establish a motive by Marc to commit the thefts. They also tended to rebut the defense suggestion that the theft may have been committed by one of the many other young people who visited the Starr household. In any event, the statements' admission into evidence was harmless, as the court did not rely on them in its detailed findings of fact. See State v. Macon, 57 N.J. 325, 340 (1971) (describing harmless error).

The court also did not err in admitting (a) Barry's testimony describing Caine's out-of-court statement that "everyone was telling her that it was [Marc Miller]" who committed the theft; and (b) Starr's testimony about Barry's out-of-court statements that he wanted to clear his name, in the face of Marc's reported allegation that Barry had committed the theft. The out-of-court statements were not admitted for the truth of the assertion that Marc was alleging that Barry had committed the theft, or that other people were alleging that Marc committed the thefts. They were admitted to explain why Barry came forward to disclose his role in pawning the jewelry.

Moreover, defense counsel did not object to Barry's testimony regarding Caine's out-of-court statement about accusations against Marc. Also, by asking Starr an open-ended question about what she said to Barry in a certain conversation, defense counsel opened the door to the out-of-court statements about Marc's reported allegations against Barry. Finally, Caine testified that Marc admitted to her directly that he had publicly accused Barry of committing the thefts, and Marc apologized for doing so. Marc's out-of-court statements were unquestionably admissible. N.J.R.E. 803(b)(1).

III. Lastly, we agree that the record lacks sufficient support for the court's order of restitution in the amount of $5000. Marc challenges his ability to pay, and argues that a hearing was required on that issue.

The court was authorized to require the juvenile to pay restitution. N.J.S.A. 2A:4A-43b(9). Due process generally requires a court to consider a defendant's ability to pay. State ex rel. D.G.W., 70 N.J. 488, 501, 505 (1976); State v. Orji, 277 N.J. Super. 582, 589 (App. Div. 1994); see also State ex rel. R.V., 280 N.J. Super. 118, 123 (App. Div. 1995) (stating that a court must consider a juvenile's present and future anticipated ability to pay before ordering restitution); cf. N.J.S.A. 2C:44-2c(2) (stating that a court shall set the amount of restitution to be paid by an adult offender "consistent with the defendant's ability to pay").

The State bears the burden to establish the restitution amount. State v. Martinez, 392 N.J. Super. 307, 319 (App. Div. 2007) (stating that the prosecution must prove by a preponderance of the evidence the amount of restitution to be ordered, in an adult prosecution); see also Cannel, New Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:44-2 (2011) ("In determining the amount of restitution ordered the burden remains on the prosecution . . . ."). The Code of Juvenile Justice bars an order of restitution if the juvenile "reasonably satisfies the court" that he or she lacks the present or future ability to pay. N.J.S.A. 2A:4A-43b(9). Yet, we do not construe that provision to place the initial burden on a juvenile to disprove the appropriateness of a restitution order.

In determining a juvenile's appropriate disposition, a court must weigh, among other factors, the juvenile's "social characteristics and needs," and the juvenile's "social history as deemed appropriate." N.J.S.A. 2A:4A-43a(6), (8). The court's discretion is also informed by the rehabilitative purposes of the Code. State ex rel. D.A., 385 N.J. Super. 411, 416 (App. Div.), certif. denied, 188 N.J. 355 (2006). Depending on a juvenile's personal and family finances, a restitution order can promote rehabilitation, undermine it, or have no effect. State ex rel. D.G.W., supra, 70 N.J. at 508; see also State v. Newman, 132 N.J. 159, 173 (1993) (stating that an unaffordable restitution obligation "would frustrate the goal of rehabilitation."). Therefore, to make a reasoned restitution decision, a court must have "sufficient details as to the offender's present and probable future ability to repay the damages caused." State ex rel. D.G.W., supra, 70 N.J. at 505.

The State argues that no hearing was necessary because the juvenile did not object to the amount of the victim's damages, nor question his ability to pay. We disagree. Where a defendant did not contest the restitution amount, nor dispute his ability to pay, we have held that a restitution hearing was unnecessary, but we did so in view of ample evidence in the record of his ability to pay, including defense counsel's concession on the record that his client had the funds to pay restitution, and evidence in the presentence report regarding defendant's education, employment, and earning capacity. State v. Orji, supra, 277 N.J. Super. at 589. The record before us contains no similar evidence about Marc's ability to pay, nor did defense counsel affirmatively concede the point.

By contrast, where a restitution order was unsupported by the record, we have held that a hearing was necessary, even though the juvenile, as in this case, did not object to the restitution amount. State ex rel. R.V., supra, 280 N.J. Super. at 121, 124. The trial court in R.V. did not conduct a hearing regarding "how the payment would impact on the . . . juvenile, or his ability to pay and prospects for future employment." Id. at 121. We remanded for a hearing limited to whether the juvenile "presently or in the future will or should be able to pay the amount ordered." Id. at 124.

We do so here as well. The hearing should be summary in nature. State ex rel. D.G.W., supra, 70 N.J. at 506-07. The court shall consider Marc's present and future ability to pay, and the impact of the order on his prospects for rehabilitation.

Affirmed in part and remanded for a restitution hearing consistent with this opinion. Jurisdiction is not retained.


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