August 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NAFISAH A. TUCKER, A/K/A NAFISAH TUCKER, A/K/A TAMIA CURRY, A/K/A NATISHA JONES, A/K/A LISA A. TALLEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 10-02-0442 and 10-05-1084.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 9, 2011
Before Judges Waugh and Koblitz.
Defendant Nafisah A. Tucker was charged by an Atlantic County Grand Jury in Indictment No. 10-02-0442 with third-degree theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:20-2b(2)(d). She was also charged in Indictment No. 10-05-1084 with fourth-degree engaging in prostitution, N.J.S.A. 2C:34-1b(1), having already been convicted of prostitution, N.J.S.A. 2C:34-1c(4). She entered a negotiated plea of guilty to both indictments. The theft charge was amended to a fourth-degree charge, and her custodial sentence was limited to concurrent sentences of 365 days in state prison. She received the maximum sentence under the plea agreement.
On October 18, 2009, in Caesar's Casino/Hotel in Atlantic City, defendant stole two slot machine vouchers worth more than $200 from the victim's pocket while her co-defendant, Kenyeta Bennett, distracted him. Defendant admitted that, on April 8, 2010, she "offer[ed] a sexual favor in exchange for money," having previously been convicted of prostitution.
She appeals her sentence of 365 days in prison imposed without explanation regarding the parole consequences of a 365-day sentence as opposed to a 364-day sentence, as well as the imposition of restitution of $1206 without an ability-to-pay hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant raises the following issues on appeal:
BECAUSE A SENTENCE OF 365 DAYS HAS SUCH DRAMATICALLY DIFFERENT PAROLE CONSEQUENCES THAN A SENTENCE OF 364 DAYS, THE WARNINGS AND ADVISORIES REQUIRED UNDER STATE V.
KOVACK ARE NECESSARY TO ENSURE A KNOWING AND INTELLIGENT PLEA. EQUALLY, BECAUSE OF THAT DRAMATIC DIFFERENCE, THE JUDGE SHOULD BE REQUIRED TO CLEARLY STATE ON THE RECORD HIS REASONS FOR IMPOSING A 365 DAY SENTENCE RATHER THAN A 364 DAY SENTENCE.
BY IMPOSING A STATE PRISON SENTENCE RATHER THAN A COUNTY JAIL SENTENCE, THE JUDGE ENSURED THAT MS. TUCKER WOULD BE SENT FAR FROM HER FAMILY AND YOUNG DAUGHTER AND THE JUDGE OFFERED NO REASON FOR MAKING THIS DECISION.
THE JUDGE IMPOSED RESTITUTION IN THE AMOUNT OF $1200 WITHOUT ANY EXAMINATION OF DEFENDANT'S ABILITY TO PAY.
Arguing that the reasoning of State v. Kovack, 91 N.J. 476 (1982), should apply, defendant maintains in Point I of her brief that she should have been warned, prior to the entry of a guilty plea, of the parole consequences of the maximum exposure of the plea agreement, which permitted a sentence of 365 days in prison. A 365-day sentence, as any sentence exceeding 364 days, must be a state prison sentence. N.J.S.A. 2C:43-5c. Any state prison sentence does not allow for parole eligibility until at least nine months are served. Only jail credits may be applied to reduce the nine-month parole disqualifier. N.J.S.A. 30:4-123.51g. A 364-day county jail sentence carries a sixty-day parole disqualifier, with a first parole eligibility date of four months less "commutation time for good behavior" and "credits for diligent application to work and other institutional assignments." N.J.S.A. 30:4-123.51g; N.J.S.A. 30:4-123.51a. An inmate serving a one-year state prison sentence may, however, "max out" before completing nine months of incarceration if she receives more than three months of jail, "work" and "good time" credit.
A defendant who pleads guilty to a fourth-degree crime may receive a non-custodial sentence or a custodial sentence ranging anywhere from one day in jail to eighteen months in prison. N.J.S.A. 2C:43-6a(4). Although the plea agreement here recommended a 365-day custodial sentence, the court was not required to impose a year-long sentence. See State v. Hess, ___ N.J. ___, ___ (2011) (slip op. at 35) ("Our jurisprudence makes clear that the State cannot insist on a term in a plea agreement that would vitiate the court's ability to exercise discretion in sentencing.").
We are concerned that the record does not disclose any explanation of the parole consequences that flow from the final day of the 365-day sentence imposed. The court did not explain the parole ramifications at the time of the entry of defendant's guilty plea nor did it do so at the time of sentencing, as required by N.J.S.A. 2C:43-2f(1). The record also does not reflect whether or not the sentencing court recognized its discretion to impose a lesser custodial sentence or considered the parole consequences of the sentence it imposed.
In Point II of her brief, defendant argues that the court failed to consider the hardship imposed on defendant by the state prison sentence in that it separates her from her eight-year-old daughter. We note, however, that inmates who receive sentences not exceeding eighteen months may be incarcerated at a county penitentiary or workhouse. N.J.S.A. 2C:43-10b.
Defendant was released from incarceration while her appeal was pending. She "maxed out" prior to becoming eligible for parole. She received commutation and work credits, which were applied to her one-year sentence, thereby reducing it to approximately eight months. She is therefore not on parole for these crimes.
Although defendant raises issues likely to recur, similarly situated defendants in the future could seek bail pending appeal pursuant to Rule 2:9-4, thereby preserving the issue for resolution in a matter with real consequences for the appealing defendant. We have determined that the issues raised by defendant in the first two points of her brief are moot. We consider an issue moot when "'our decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting New York S. & W. R. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (1984), aff'd, 204 N.J. Super. 630, (App. Div. 1985)). Although we sometimes consider the merits of an issue, notwithstanding its mootness, where significant issues of public import appear, see State v. McCabe, 201 N.J. 34, 44 (2010); Joye v. Hunterdon Cent. Reg'l High Sch. Board of Educ., 176 N.J. 568, 583 (2003), we do not choose to do so in this case.
Defendant argues in Point III of her brief that the trial court erred in imposing joint and several restitution payable to the victim in the amount of $1206 without inquiring as to defendant's ability to pay. At the time defendant entered her plea, defense counsel indicated that "[t]here will be joint and several restitution in the full amount that was charged. Which, in this case, I believe, is $1,400." The plea form, however, does not specify an amount of restitution. The pre-sentence report states that "[t]he defendant's ability to pay court assessments is unknown because she has no current income."
Defense counsel's statement at the time of the guilty plea does not permit the imposition of restitution without a hearing.
N.J.S.A. 2C:44-2 sets forth the criteria for imposing fines and restitutions and provides, in relevant part, (2) In 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. . . . [N.J.S.A. 2C:44-2c.]
A trial court must make these findings and state reasons on the record before imposing a fine or restitution. State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.), certif. denied, 183 N.J. 265 (1994). Because the court did not make the requisite findings before imposing restitution, we would ordinarily remand to the trial court to conduct a hearing as to defendant's ability to pay. State v. Gallagher, 286 N.J. Super. 1, 23 (App. Div.), certif. denied, 146 N.J. 569 (1996). At oral argument before us, however, defense counsel waived his client's right to such a hearing.
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