STATE OF NEW JERSEY VS. JOHN C. VANNESS (13-01-0208, MONMOUTH COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1901-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN C. VANNESS a/k/a
JOHN C. VAN NESS,

          Defendant-Appellant.


                   Submitted February 24, 2021 – Decided April 26, 2021

                   Before Judges Fuentes, Rose and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 13-01-
                   0208.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Candace Caruthers, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Mary R. Juliano,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Tried to a jury, defendant John C. Van Ness was convicted of theft- and

fraudulent-related offenses for passing bad checks at a Sears department store

in Ocean Township. Following appropriate mergers, defendant was sentenced

to an aggregate five-year term of imprisonment, with a discretionary parole

disqualifier of thirty months pursuant to N.J.S.A. 2C:43-6(b). He now appeals

from the judgment of conviction (JOC) entered on December 17, 2018. For the

reasons that follow, we affirm defendant's convictions but remand for

resentencing.

                                        I.

      In January 2013, defendant was charged in a twelve-count Monmouth

County indictment with various offenses arising from his two-day crime spree:

third-degree theft by deception, N.J.S.A. 2C:20-4 (counts one, five, and nine);

third-degree forgery, N.J.S.A. 2C:21-1(a)(2) (counts three, seven, and eleven);

third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) (counts four,

eight, and twelve); and fourth-degree passing a bad check, N.J.S.A. 2C:21-5

(counts two, six, and ten).

      Prior to defendant's first trial in 2014, the State dismissed all six forgery

and forged instrument charges (counts three, four, seven, eight, eleven, and

twelve). The jury found defendant guilty on the six remaining counts of theft


                                                                             A-1901-18
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by deception and passing bad checks (counts one, two, five, six, nine, and ten).

On November 13, 2014, defendant was sentenced to an aggregate prison term of

five years.

      Defendant appealed, and we reversed his convictions and remanded for a

new trial. State v. Van Ness, 

450 N.J. Super. 470

, 499 (App. Div. 2017). This

court held defendant's constitutional right to counsel was violated by the trial

court's failure to determine whether defendant qualified for a public defender,

and its erroneous decision that defendant was capable of self-representation at

trial.

Id. at 474.

      Prior to defendant's present trial, the trial judge dismissed the six forgery

and forged instrument counts on defendant's motion with consent of the State.

Defendant's trial spanned four consecutive days in October 2018. We recount

only those facts presented at the trial that are most relevant to the issues raised

by defendant on appeal.

      On November 11, 2012 – during the aftermath of Hurricane Sandy –

defendant purchased an air cleaner, humidifier, home generator, and gift card

from Sears. Defendant presented a business check for $995.08 to Sears cashier,

Shequelle Harris. The check was backdated to October 11, 2012 and drawn on

a Banco Popular account held by defendant and his business, V&V Machines.


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The account, which had a negative balance of $7,559.23, had been closed since

2009. Defendant was aware the account was closed and stipulated only to the

following facts at trial:

             John Van Ness knew prior to November of 2012 that
             his business checking account with Banco Popular
             under the title V&V Machines bearing account number
             xxxxxxxxx1 was closed.

      Defendant asked Harris to "hold the check" and refrain from depositing it.

Although the store's protocol required Harris to verify the authenticity of the

check through a scanning device, she did not do so and processed defendant's

check as a cash transaction. Harris was inexperienced as a cashier, having been

hired by Sears two-and-one-half weeks earlier. When defendant asked when she

would be working again, Harris responded, "the next day."

      The following day, defendant returned to Sears and purchased eight sets

of bed sheets and two coffee makers, totaling $957.55, at Harris's register.

Defendant again tendered a check from the same business account, backdated

one month to October 12, 2012, and instructed Harris to hold the check.

      Less than an hour later, defendant returned to Sears and purchased an

additional four sets of bedsheets, two television mounts, and another coffee

maker, totaling $930.80, at Harris's register. Once again, defendant provided a

check from the same business account, backdated to October 12, 2012, and

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instructed Harris to hold the check. Defendant promised to return to Sears in

nine or ten days to pay for all items purchased on November 11 and 12, 2012.

      Except for the gift card, defendant returned all items purchased from the

Ocean Township Sears to other Sears stores located in Hamilton and Toms

River. Defendant received cash for the returns. When he returned to the Ocean

Township Sears on November 20, 2012, staff summoned the police. Defendant

was arrested in the parking lot without incident.

      Harris testified on behalf of defendant at his first trial. Because she was

unavailable to testify at the present trial, the judge granted defendant's

unopposed motion to admit her testimony, with certain redactions. Harris's

statement was admitted in evidence during the State's case-in-chief.

      Harris acknowledged that defendant presented his driver's license with

each check. She believed the checks were legitimate because they appeared

"official." Harris would not have accepted the checks if she knew the checks

were "no good."

      Jean Sarno, a loss prevention manager employed by Sears at the time of

the incident, noticed cash shortages from Harris's register and suspected fraud.

Sarno testified at the first trial but died prior to the present trial. Sarno's

testimony was not admitted in evidence at defendant's present trial, although


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some of her remarks were admitted through Harris's testimony. 1 As a few

notable examples, Harris testified that Sarno said defendant was "a very violent

man" and a "con artist" who "used false IDs" purchasing "stuff from certain

Sears" and returning it for cash. According to Harris, Sarno "intimidate[d]" her

by threatening to report Harris to the police as defendant's "accomplice" if she

failed to cooperate with the internal investigation conducted by Sears.

      In addition to the prior testimony of Harris, the State presented the

testimony of Sears employees, an Ocean Township police officer, and Estelmari

Ramos, a branch supervisor at Banco Popular. Because Harris's statement was

read to the jury, defendant did not testify. Nor did he present the testimony of

any witnesses.

      According to Ramos, the V&V Machines account was opened on February

26, 2008 and closed by Banco Popular on April 30, 2009 because the account

was overdrawn by $7,559.23. Ramos said the "account was charged off," which

"means it was overdrawn" and "pretty much a loss for the bank." The bank sent

written notice of the closure to the address on file. Bank records revealed




1
  Prior to trial, the judge granted defendant's unopposed motion to preclude
admission of the testimony of any State witnesses who testified at the first trial
but were unavailable for the present trial.
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                                        6
defendant had last made an "ATM balance inquiry" on March 3, 2009, when the

account had a negative balance of $6,544.23.

        The jury found defendant guilty of all remaining six counts of the

indictment. Following defendant's sentencing, he filed this appeal.

        On appeal, defendant raises the following points for our consideration:

                                     POINT I

              THE ADMISSION OF HIGHLY PREJUDICIAL AND
              IRRELEVANT EVIDENCE OF DEFENDANT'S
              BANK RECORDS DENIED DEFENDANT A FAIR
              TRIAL BY SUGGESTING PROPENSITY TO STEAL
              AND AN INABILITY TO REPAY HIS DEBTS.
              [(Partially raised below)]

                    A. The Trial Court Erred by Analyzing the
                    Evidence under N.J.R.E. 403.

                    B. A Proper N.J.R.E. 404(b) Analysis
                    Shows that the Bank Records Evidence
                    Was Inadmissible.
                    [(Not raised below)]

                          i. The Bank Records Evidence
                          Fails the First Cofield[2] Prong
                          Because It Is Irrelevant and
                          Does Not Relate to Any
                          Genuinely Disputed Issue.

                          ii. The Evidence Fails the
                          Fourth Cofield Prong Because


2
    State v. Cofield, 

127 N.J. 328

, 338 (1992).
                                                                            A-1901-18
                                         7
         It Had No Probative Value but
         Was Highly Prejudicial.

         iii.   The Absence of a
         [N.J.R.E.] 404([b]) Charge
         that Clearly Explained the
         Permissible Use of the Prior
         Bad        Act      Evidence
         Necessitates Reversal.

                  POINT II

DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL AND DUE PROCESS OF LAW DUE TO
THE ERRONEOUS ADMISSION OF HEARSAY
EVIDENCE THAT HE WAS A NOTORIOUS,
VIOLENT CON[]MAN.
(Not raised below)

                  POINT III

DEFENDANT'S SENTENCE IS EXCESSIVE
BECAUSE THE TRIAL COURT ERRED BY
IMPOSING A SENTENCE LONGER THAN WHICH
WAS GIVEN AT HIS FIRST SENTENCING,
FAILING TO FIND APPLICABLE MITIGATING
FACTORS, FAILING TO CONDUCT AN ABILITY
TO PAY HEARING, AND MISCALCULATING
[DEFENDANT]'S JAIL CREDITS.
[(Partially raised below)]

    A. Defendant's Sentence Was Illegally
    Increased.
    [(Not raised below)]

    B. The Court Failed to Find Applicable
    Mitigating Factors.


                                             A-1901-18
                      8
                  C.    The Court Erred by Failing to
                  Determine Defendant’s Ability to Pay
                  Restitution.
                  [(Not raised below)]

                  D. Defendant's [JOC] Must Be Amended
                  to Correct a Miscalculation of His Jail
                  Credits.
                  [(Not raised below)]

                                       II.

      We turn first to defendant's arguments raised in points I and II that

challenge his convictions.

                                       A.

      In point I, defendant contends the trial judge erroneously admitted in

evidence bank records and testimony that Banco Popular closed defendant's

account due to its $7,559.23 deficit. Defendant argues "the critical question for

the jury was whether [he] intended to pay for the items" when he ultimately

returned to Sears on November 20, 2012. But defendant claims "the [bank

account] evidence was irrelevant to [his] intent to repay Sears" and "encouraged

the jury to believe [defendant] planned to steal from Sears in the same manner

he apparently had stolen from Banco Popular." We disagree.

      The day before trial, the judge considered various pretrial motions filed

by the parties. Because defendant was previously convicted of passing bad


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                                       9
checks, he sought "to limit admissibility of [his] prior convictions to

demonstrate knowledge that his account was closed." In that context, defendant

argued "the evidence [wa]s overly prejudicial and violate[d] [N.J.R.E.] 404 as

to character and conformity." Defendant acknowledged the account was closed;

he offered to stipulate to that fact.    Defendant did not, however, move to

preclude – or otherwise argue – the reason his account was closed constituted

"bad act" evidence under N.J.R.E. 404(b).

      The State opposed defendant's motion and moved to admit evidence of

defendant's prior criminal convictions for passing back checks under N.J.R.E.

404(b).    The State contended those prior convictions "demonstrate[d]

defendant's knowledge that the account was closed."      Following a Cofield

analysis, the judge granted the State's motion. Ultimately, the State did not

introduce evidence of defendant's prior convictions at trial. Nor did the State

seek to introduce defendant's bank records as bad act evidence under N.J.R.E.

404(b).

      Midtrial, defendant moved to exclude defendant's bank records. Because

defendant stipulated that his account was closed when he presented the checks

to Sears, he argued the balance on that account was "irrelevant" and "overly

prejudicial."


                                                                         A-1901-18
                                        10
      Contending the stipulation was "very, very vague," the State argued it was

entitled to demonstrate "when [defendant] learned that the account was closed";

"the circumstances under which the account was closed"; that the bank closed

the account and notified defendant of its closure; and "in the month leading up

to the closure [defendant] was aware of th[e] [more than $6000 negative]

balance and did nothing to rectify it, which led to the closure." According to

the State, "in the month before the account was closed, [defendant] was

performing ATM balance inquiries on his account and saw that it was in the

severe negative territory of over $6000."

      Following argument, the judge rendered a decision from the bench finding

the evidence was relevant and demonstrated defendant's knowledge at the time

he presented the checks at Sears. The judge elaborated:

            Let me start with the premise that all evidence is
            prejudicial to some extent. The question is the
            prejudicial nature being outweighed by its [probative
            value] or vice versa.

                  In this case, I think it does go exactly to what [the
            prosecutor] was saying, whether it's the knowledge that
            [defendant] ha[d] at the time that he goes [to pay for the
            items] with the checks.

                   Yes, the stipulation tells part of the story, that is
            that he knew the account was closed as of the time of
            this offense. The question is beyond that, which is, the
            longer he knows does go to, I think, the second charge,

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                                       11
            not necessarily the bad check charge but the theft by
            deception charge, because it's the knowledge there of
            what he's doing and trying to get the goods without
            paying for them.

                  Now, he does have a defense to that, at least
            what's been presented, that he [ultimately] went back
            with the intent to pay. Okay. That's a credibility issue,
            among other things, because of what happened.

                   He was arrested before he ever had the chance,
            but . . . that's a totally different issue as to whether . . .
            and what he knew about the bank account being closed,
            and at what level, and at what point in time, and how
            far in time prior to these incidences in November of
            2012.

                   Now, do we need to go into the fact that his
            account had $100,000 on one day and, you know,
            $50,000 on another day and . . . it's a business account.
            It's going to jump all over the place. That's just the
            nature of business.

                   I don't think that's really relevant, but the closing
            dates, the information from the bank for that, I think
            that's absolutely relevant.

      For the first time on appeal, defendant contends evidence that the bank

closed his account "in April 2009 with a negative balance of $7,559.23"

suggested he was unable to repay his debts and had a "propensity to steal." As

such, defendant contends the records should have been excluded as prior bad act

evidence under N.J.R.E. 404(b). In the alternative, defendant contends the judge

should have sua sponte issued a limiting instruction, cautioning the jury "not

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                                        12
[to] use this evidence to decide that . . . defendant has a tendency to commit

crimes or that he. . . is a bad person." Model Jury Charges (Criminal), "Proof

of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (rev. Sept. 12, 2016).

Defendant further contends that because he stipulated that the account was

closed, it was unnecessary for the State to introduce his bank records.

      Ordinarily, the admissibility of evidence during trial rests within "the

sound discretion of the trial court," State v. Willis, 

225 N.J. 85

, 96 (2016), and

this court will review a trial court's evidentiary ruling for abuse of discretion,

State v. Green, 

236 N.J. 71

, 81 (2018). "However, that deferential approach is

inappropriate when the trial court failed to properly apply Rule 404(b) to the

evidence at trial."

Ibid. Nonetheless, “if the

party appealing did not make its

objection to admission known to the trial court, the reviewing court will review

for plain error, only reversing if the error is 'clearly capable of producing an

unjust result.'" State v. Rose, 

206 N.J. 141

, 157 (2011) (quoting R. 2:10-2).

      Evidence may be intrinsic to the charged crime in two ways. Pertinent to

this appeal, "evidence is intrinsic if it 'directly proves' the charged offense."

Id.

at 180.

Additionally, "uncharged acts performed contemporaneously with the

charged crime may be termed intrinsic if they facilitate the commission of th e

charged crime."

Ibid. (internal quotation marks

omitted). Evidence that is


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                                        13
"intrinsic" to the charged crime is not "other crimes" evidence, and therefore not

subject to N.J.R.E. 404(b). Ibid.; State v. Sheppard, 

437 N.J. Super. 171

, 193

(App. Div. 2014). However, even "intrinsic evidence" is subject to N.J.R.E.

403, which permits exclusion of "relevant evidence . . . if its probative value is

substantially outweighed by the risk of . . . undue prejudice." 

Rose, 206 N.J. at

161

.

       We have considered defendant's belated argument that the bank records

were bad act evidence under N.J.R.E. 404(b), pursuant to the plain error

standard, R. 2:10-2, and conclude it lacks sufficient merit to warrant extended

discussion in a written opinion, R. 2:11-3(e)(2). We add only the following

comments.

       As defendant acknowledges in his merits brief, the prosecutor did "not

explicitly argue[]" that the bank records "demonstrate[d] why [defendant]

committed the offenses[;] . . . had previously stolen from the bank[;] was poor[;]

and had a general need of money." Rather, the prosecutor limited his comments

in summation, as follows:

                  [Defendant] conducted three transactions totaling
            nearly $3000. During each one of those transactions,
            he was checked out by cashier Shequelle Harris.
            During each of those transactions, he passed checks to
            Shequelle Harris.


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                                       14
                   Those checks were drawn on a Banco Popular
             account that was closed over three years before he set
             foot in that store. That account, at the time it was
             closed, had a negative balance of $7,559.[2]3. That
             account was . . . defendant's account and . . . defendant
             knew at the time he passed the checks at Sears that his
             account was closed.

      Consistent with the model jury charge for bad checks, Model Jury Charges

(Criminal), "Bad Checks" (rev. May 12, 2008), the judge instructed the jury, in

pertinent part:

                   In order to obtain a conviction [for bad checks],
             the State must prove each of the following elements
             beyond a reasonable doubt: [(1)] that the defendant
             knowingly issued or passed a check for the payment of
             money, and (2) that the defendant knew at the time he
             issued or passed the check that it would not be honored
             by the drawee.

      Here, the bank records directly proved defendant passed each check,

knowing they would not be honored by Banco Popular and, as such, that

evidence was not subject to N.J.R.E. 404(b). 

Rose, 206 N.J. at 180

. The State

introduced the records for that purpose only.       As the trial judge correctly

concluded, the probative value of the records substantially outweighed their

prejudice under N.J.R.E. 403. We therefore discern no error, let alone plain

error, in the judge's failure to analyze admission of those records under N.J.R.E.

404(b).


                                                                            A-1901-18
                                       15
      Moreover, we are not persuaded by defendant's repackaged contention

that the bank records were cumulative evidence in view of the stipulation that

the account was closed. We have made it clear that "in a criminal case, if facts

are stipulated, the judge should not tell the jurors that they are 'bound' by such

stipulated facts, if to do so would result in a directed verdict of any element of

an offense charged." State v. Wesner, 

372 N.J. Super. 489

, 491 (App. Div.

2004).

      Here, pursuant to the model jury charge for stipulations, the judge

instructed the jury: "As with all evidence, an undisputed fact can be accepted

or rejected by the jury in reaching a verdict."       See Model Jury Charges

(Criminal), "Stipulations" (approved Feb. 14, 2005). Accordingly, the jury was

not bound by the stipulation and the bank records therefore were not cumulative

evidence.

                                       B.

      Little need be said regarding the assertions raised in defendant's point II.

Defendant now claims the trial judge erroneously admitted Sarno's statements

through Harris that defendant was "a very violent man" and "a con artist" who

"had done this before." Defendant argues those statements were inadmissible as




                                                                            A-1901-18
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hearsay statements under N.J.R.E. 801 and improperly introduced ev idence of

his prior convictions. See N.J.R.E. 404(b).

      Initially, we recognize defendant elicited the challenged remarks on

redirect examination of Harris at his first trial when he was uncounseled. But

defendant – through counsel – moved to admit Harris's trial testimony with

redactions at his present trial. During the pretrial hearing the judge and the

parties engaged in lengthy colloquy regarding the admission of Harris's

testimony, and defense counsel raised several objections to the State's propos ed

redactions. However, defense counsel neither objected to the inclusion of the

belatedly challenged testimony nor objected to its omission when Harris's

testimony was read to the jury. We therefore reject defendant's argument that

counsel "simply . . . overlooked" Sarno's remarks.

      When viewed through the prism of the plain error standard, we discern

Sarno's brief comments, introduced at the end of Harris's testimony that spanned

twenty-one transcript pages, was not "clearly capable of producing an unjust

result." R. 2:10-2. Because defendant never objected to that admission to

Sarno's remarks, we assume defendant agreed they were not harmful. See State

v. Nelson, 

173 N.J. 417

, 471 (2002) (recognizing it is "fair to infer from the




                                                                           A-1901-18
                                      17
failure to object below that in the context of the trial the error was actually of

no moment") (quoting State v. Macon, 

57 N.J. 325

, 333 (1971)).

                                       III.

      Lastly, we address defendant's sentencing arguments. Defendant contends

the trial court erred by improperly: (1) imposing a greater sentence than was

ordered following his first trial; (2) evaluating mitigating factors; and (3)

ordering restitution without an ability-to-pay hearing. Defendant also contends

his jail credits were miscalculated, thereby requiring entry of an amended JOC.

      Our analysis of these arguments is framed by well-settled principles.

Generally, we review a sentencing court's decision "in accordance with a

deferential standard." State v. Fuentes, 

217 N.J. 57

, 70 (2014); see also State v.

Trindad, 

241 N.J. 425

, 453 (2020). We do not "substitute [our] judgment" for

that of the sentencing court. State v. Case, 

220 N.J. 49

, 65 (2014). That

deference, however, "applies only if the trial judge follows the Code and the

basic precepts that channel sentencing discretion."

Ibid. Ordinarily, we will

not

disturb a sentence that is not manifestly excessive or unduly punitive, does not

constitute an abuse of discretion, and does not shock the judicial conscience.

State v. O'Donnell, 

117 N.J. 210

, 215-16 (1989).




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                                       18
      At his first trial, defendant was sentenced by another judge to an aggregate

prison term of five years. 

Van Ness, 450 N.J. Super. at 491

. After his second

trial, the trial judge sentenced defendant to the same aggregate prison term but

imposed a thirty-month parole disqualifier. Pursuant to N.J.S.A. 2C:43-6(b),

the judge found three aggravating factors "substantially outweighed" one

mitigating factor. In reaching his decision, the judge cited defendant's "pattern

of theft by passing bad checks," including a prior conviction in this State for

theft, and a Florida conviction for a "theft by deception type of charge."

Relevant here, the Florida theft offense occurred after defendant committed the

present offenses. The judge also referenced defendant's subsequent conviction

in Pennsylvania "which may or may not" have been for a municipal theft-related

offense.

      On appeal, defendant argues his sentence was "illegally increased"

because he had "beg[un] serving a legal sentence" for his convictions from the

first trial. Defendant's argument is misplaced.

      We have recognized a court may not impose a "substantially harsher

sentence" on remand if the increased sentence is not required by law or is not

supported by "any evidence of intervening conduct or prior oversight to justify

the new sentence." State v. Heisler, 

192 N.J. Super. 586

, 592-93 (App. Div.


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                                      19
1984); see also State v. Pindale, 

279 N.J. Super. 123

, 128-30 (App. Div. 1995)

(holding in resentencing a defendant following remand, trial courts must

overcome a "presumption of vindictiveness" when imposing a greater sentence

than ordered before by pointing to "specific reasons justifying the increase").

To hold otherwise would effectively penalize a defendant for exercising his

constitutional right to challenge his sentence. 

Heisler, 192 N.J. Super. at 593

.

      Consequently, "whenever a judge imposes a more severe sentence . . .

after a new trial," the judge must provide reasons for doing so, which "must be

based upon objective information concerning identifiable conduct on the part of

the defendant occurring after the time of the original sentencing proceeding."

Pindale, 279 N.J. Super. at 129

(quoting North Carolina v. Pearce, 

395 U.S. 711

,

726 (1969)). Therefore, "if the original sentence is increased, the sentencing

authority must affirmatively identify the relevant conduct or events that

occurred after the original sentencing proceeding in order to overcom e any

presumption of vindictiveness." State v. Rodriguez, 

97 N.J. 263

, 276 (1984).

Where, as here, the judge who sentenced defendant after the second trial is not

the same judge who sentenced him following the first trial, any presumption of

vindictiveness is virtually eliminated. See Texas v. McCullough, 

475 U.S. 134

,

139 (1986) ("[Unlike] the judge who has been reversed, the trial judge here had


                                                                           A-1901-18
                                      20
no motivation to engage in self-vindication.") (internal quotation marks

omitted).

      In the present matter, the trial judge expressly articulated the intervening

conduct that justified imposition of a longer sentence than that determined by

the initial judge. After defendant was convicted at his first trial, defendant was

convicted in two other States for theft-related offenses, at least one of which

was indictable. On resentencing, the court must consider defendant's "post-

offense conduct, rehabilitative or otherwise," in its sentencing decision. State

v. Jaffe, 

220 N.J. 114

, 124 (2014). The judge's decision here was supported by

defendant's post-offense conduct.

      We turn to defendant's argument that the trial judge failed to find

applicable mitigating factors, i.e., factor two:       "The defendant did not

contemplate that [his] conduct would cause or threaten serious harm," N.J.S.A.

2C:44-1(b)(2); and factor four: "There were substantial grounds tending to

excuse or justify the defendant's conduct, though failing to establish a defense,"

N.J.S.A. 2C:44-1(b)(4).    Defendant contends that because the court found

mitigating factor one: "The defendant's conduct neither caused nor threatened

serious harm," N.J.S.A. 2C:44-1(b)(4), the "same logic" applies to mitigating

factor two.   Defendant also contends he stole from Sears because he was


                                                                            A-1901-18
                                       21
"desperate and looking for charity and compassion" in the aftermath of

Hurricane Sandy and, as such, the judge should have found mitigating factor

four.

         In sentencing, the trial court "first must identify any relevant aggravating

and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the

case." 

Case, 220 N.J. at 64

. The court must then "determine which factors are

supported by a preponderance of [the] evidence, balance the relevant factors,

and explain how it arrives at the appropriate sentence." 

O’Donnell, 117 N.J. at

215

. We are "bound to affirm a sentence, even if [we] would have arrived at a

different result, as long as the trial court properly identifie[d] and balance[d]

aggravating and mitigating factors that [were] supported by competent credible

evidence in the record."

Ibid. “Although there is

more discretion involved in

identifying mitigating factors than in addressing aggravating factors, those

mitigating factors that are suggested in the record, or are called to the court's

attention, ordinarily should be considered and either embraced or rejected on the

record." State v. Blackmon, 

202 N.J. 283

, 297 (2010); see also 

Case, 220 N.J.

at 64

.

         At sentencing, the trial court found aggravating factors three (the risk

defendant will commit another offense), six (defendant's prior record), and nine


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                                         22
(the need to deter), N.J.S.A. 2C:44-1(a) (3), (6), and (9). The judge then

addressed the mitigating factors:

                   Originally when I looked at this, I did not find
            that there were mitigating factors; however, [defense
            counsel] has convinced me today that at least mitigating
            factor one applies. [D]efendant's conduct neither
            caused nor threatened serious harm. The total amount
            of the theft in this instance was . . . around $3000.

                  ....

            It was not serious harm to a major corporation like
            Sears. On the other hand, pretty soon, in the words of
            Everett Dirksen, a dollar here, dollar there, pretty soon
            you're talking serious money. And if every Sears store
            had these types of thefts going on, they'd be in serious
            trouble.

      The trial judge did not, however, address defendant's argument as to

mitigating factors two and four. 3 Accordingly, we vacate defendant's sentence

and remand for consideration of mitigating factors two and four, and express

findings supporting or rejecting both factors. We suggest no opinion as to the

judge's ultimate findings or resultant sentence.


3
  At sentencing, defendant urged mitigating factors five (whether the victim's
conduct induced or facilitated the crime), N.J.S.A. 2C:44-1(b)(5), and eight
(defendant's conduct was the result of circumstances unlikely to recur), N.J.S.A.
2C:44-1(b)(8). On appeal, defendant does not assert the judge failed to find
those factors. An issue not briefed is deemed waived. See Gormley v. Wood-
El, 

218 N.J. 72

, 95 n.8 (2014); see also Pressler & Verniero, Current N.J. Court
Rules, cmt. 5 on R. 2:6-2 (2021).
                                                                           A-1901-18
                                       23
      We also part company with the trial judge's restitution award in the

absence of an ability-to-pay assessment. In doing so, we recognize defendant

neither requested an ability-to-pay hearing before the trial judge nor otherwise

contested the imposition of restitution. Indeed, defendant merely asserted that

the $2,749.78 total restitution amount should be apportioned per count. Notably,

the judge gave defendant credit for restitution he had paid in connection with

his initial convictions.

      Nonetheless, before a court imposes restitution, it must find "[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), State v. Ferguson, 

273 N.J. Super. 486

, 499

(App. Div. 1994). A hearing is generally required unless there is no dispute as

to the amount necessary to make the victim whole or – as is the case here – the

defendant's ability to pay. State v. McLaughlin, 

310 N.J. Super. 242

, 263-65

(App. Div. 1998).

      As the State correctly notes, the initial sentencing judge expressly found

defendant had the ability to pay restitution after "he is released from prison. He

is fifty-three years old. He appears to be a young man, certainly under today's

actuary standards. There doesn't appear to be any reason why he couldn't go out

and get legitimate employment and pay this money back." At the time of


                                                                            A-1901-18
                                       24
resentencing, however, defendant was fifty-seven years old and incarcerated.

And the trial judge made no findings about his ability to pay on the day of

resentencing. Accord 

Jaffe, 220 N.J. at 124

.

      We agree this lapse requires the award be vacated and the matter remanded

for a determination of whether defendant can satisfy the order. See State v.

Pessolano, 

343 N.J. Super. 464

, 479 (App. Div. 2001) (remanding for

reconsideration of the restitution award where the trial judge "held no hearing

and made no comments during sentencing about defendant's financial status or

ability to pay").

      The last matter for consideration concerns the calculation of jail credits.

Defendant claims the JOC must be amended to reflect nineteen days for time

served between June 7, 2013 and June 25, 2013, as reflected on his original JOC

and awarded by the first sentencing judge. The State counters that defendant's

presentence report indicates he was incarcerated during that timeframe as a

fugitive from Pennsylvania for fraud offenses committed in that State.

      Although the trial judge detailed defendant's jail credits at the conclusion

of sentencing, the record fails to reveal the timeframe in question. Accordingly,

on remand, the judge shall determine whether defendant is entitled to jail credits




                                                                            A-1901-18
                                       25
for the period spanning June 7, 2013 through June 25, 2013, and file an amended

JOC as necessary.

      Affirmed, and remanded for resentencing. We do not retain jurisdiction.




                                                                         A-1901-18
                                     26

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