NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3309-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES R. SKINNER, a/k/a JAMES SKINNER,
Defendant-Appellant. _________________________
Argued October 29, 2024 – Decided January 10, 2025
Before Judges Sumners and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 16-05- 0800.
Scott M. Welfel, Assistant Deputy Public Defender argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Scott M. Welfel, of counsel and on the briefs).
Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Monica do Outeiro, of counsel and on the brief). PER CURIAM
Defendant appeals from convictions of third-degree burglary, N.J.S.A.
2C:18-2, and third-degree theft of movable property, N.J.S.A. 2C:20-3(a), after
a jury trial. Defendant challenges his in-court identification, a detective's
alleged improper trial testimony, the jury charge given related to identification,
cumulative error, and the sentence imposed by the court. After our review of
the record and applicable legal principles, we conclude defendant's challenges
are unpersuasive and affirm.
I.
The facts which follow were developed at the trial held in September
2021. Defendant worked part-time at Kelly's Restaurant and Tavern (Tavern)
in Neptune City for ten years prior to the charges which are the subject of this
appeal. As an employee, his responsibilities included locking the day's cash
earnings in a wooden box in a downstairs office at closing time. Tavern owner
Kevin Kelly, Sr.1 fired defendant in September 2015.
On February 1, 2016 at approximately 3:30 a.m., Kevin Dunn, who
worked for the Tavern's beer distributor, arrived at the Tavern to service its draft
1 Because the facts involve a father and son with the same name, we refer to them as Kevin Sr. and Kevin Jr., respectively. We intend no disrespect. A-3309-21 2 beer lines. While Dunn cleaned the lines connected to the upstairs bar, a man
walked into the Tavern at approximately 3:37 a.m. After exchanging greetings
with the man, he walked away, and Dunn continued working. He saw the man
again at approximately 3:45 a.m., also a third time at 3:51 a.m., at the downstairs
bar. This time, they had a brief conversation and Dunn "g[o]t a clear look" at
the man's face. Dunn saw him a final time when he left the Tavern at 4:30 a.m.
As the man left the Tavern, he passed Tavern chef Jeffrey LaPoint. LaPoint did
not "get a good look at" the man's face but believed he was with "the guy who
cleans the beer lines."
When Dunn denied the man was with him, LaPoint became concerned
why the man was in the Tavern during non-operating hours and called the police.
When police arrived, Dunn told them the man had a beard but did not specify
his hair color. He also told police the man "appeared to know his way around
the area," but did not offer reasons for this statement. Dunn then left the Tavern
to attend to his next job.
The police called Kevin, Sr.'s son, Kevin Kelly, Jr., one of the Tavern's
managers and told him the Tavern may have been robbed. Upon reaching the
Tavern, Kevin Jr. found someone had "disturbed" the "cash drawers" and
"change boxes" in the downstairs office, which were locked. Accompanied by
A-3309-21 3 police, Kevin Jr. accessed the Tavern's security camera footage from that
morning. The footage showed the man "walk[ing] to the downstairs office area
and stand[ing] at the door" before "walk[ing] back upstairs to the main bar to
"remove[] the downstairs office door key lanyard" from behind the bar. The
video then showed the man entered and left the office.
Based on the man's "walk, his mannerisms, his height, just everything
about him" in the footage, Kevin Jr. testified that he recognized him as
defendant. Shortly afterwards, Kevin Sr. also arrived and watched the footage
with his son. He agreed the footage depicted defendant based on defendant's
"distinctive walk, . . . height, and knowledge of the building. Kevin Sr. also
determined "the entire weekend's cash earnings," totaling $12,443.56, were
missing.
Neptune City Police detective Michael Vollbrecht arrived at the Tavern to
investigate the incident. He spoke simultaneously with both Kellys and Tavern
manager Christopher Lynch, who all recognized defendant as the man in the
footage. When Vollbrecht documented this conversation two-and-a-half hours
later, he stated he had also "felt the subject [of the footage] resembled James
Skinner," as he was "familiar with Skinner" from growing up with him in
Neptune City.
A-3309-21 4 Dunn later returned to the Tavern around 10:30 a.m. at the request of one
of the Kellys. With police present, Dunn told the Kellys the man had red hair
and a chest tattoo and that he believed the man used to work at the Tavern. Dunn
then accompanied the police to the police station, where Vollbrecht took his
statement.
In his statement, Dunn described the man as bearded with red hair who
walked "funny, like he may have been drunk" or "had something in his"
buttocks. Dunn "thought he was an employee" at the Tavern "because [he] saw
him on about three separate occasions while [he] was cleaning out the [beer]
lines" in the past. Dunn added the man said something to him that morning that
he had also said during one of their previous encounters. He said he did not
know the man's name.
Meanwhile, the footage was shown to LaPoint, who recognized the man
as defendant based on his appearance. LaPoint shared this belief with Lynch,
who agreed with him. Later that day, Kevin Jr. also showed the footage to
Tavern manager Timothy Hendricksen, who recognized the man as defendant
after watching the footage for a "[f]ew minutes." He told Kevin Jr., who agreed
with him.
A-3309-21 5 Defendant was arrested and a Monmouth County grand jury indicted him
for third-degree burglary and third-degree theft of movable property. Before
trial, defendant moved to suppress any in-court or out-of-court identification by
Dunn, arguing Dunn identified him "under suggestive circumstances" because
Dunn gave "more detail" in his formal statement to the police than in his initial
"general description" earlier in the day. The court denied the motion. Relying
on State v. Chen, 208 N.J. 307, 327 (2011), the judge determined there was no
suggestiveness related to Dunn's identification of defendant, finding he
identified defendant from their past in-person interactions.
The case was tried before a jury over six days. During the State's direct
examination, Dunn described the man he saw as tall with red facial hair. When
the prosecutor asked Dunn if he would "recognize him if [Dunn] saw him
today?" and whether Dunn saw him "in the courtroom," Dunn responded "[y]es"
both times and pointed to defendant who was seated at defense table. Defendant
did not object to Dunn's in-court identification.
The State also played clips and showed stills from the surveillance footage
to LaPoint, Kevin Jr., and Hendricksen, who each testified on direct examination
that they recognized the man as defendant based on his appearance and manner
of walking. LaPoint testified Lynch did not say who he thought the man was
A-3309-21 6 when he showed LaPoint the footage. Hendricksen testified he watched the
footage alone. As to whether Dunn watched the footage, Kevin Jr. and Dunn
differed. Kevin Jr. testified Dunn watched it with him and Kevin Sr., but Dunn
claimed the Kellys never showed it to him. Kevin Sr. testified he did not show
the footage to Lynch, LaPoint, or Hendricksen. Kevin Sr. further testified parts
of the Tavern required someone "really ha[d] to know how to maneuver in there"
to find things. He added defendant would have known the keys were behind the
bar because only employees would know to look there.
The State also called Vollbrecht, who testified he reviewed the full
surveillance footage as part of his investigation. The prosecutor showed him a
series of stills and short clips from the footage, asking questions about the
selected footage. Most questions involved the Tavern's physical layout,
particularly downstairs areas that Vollbrecht described as unorganized by his
standards and "if you knew what was supposed to be there and where it was
supposed to be, you would know where it is." At certain points, the prosecutor
asked Vollbrecht to confirm which room a frame depicted, where the room was
situated in the Tavern, or where certain doors or corridors led.
The prosecutor also showed Vollbrecht several stills and clips of the man
moving through the Tavern and asked him to explain what they showed the man
A-3309-21 7 doing. In some instances, Vollbrecht testified as to which room the man was
entering or leaving but others described different details of the clips.
The following colloquy occurred between the prosecutor and Vollbrecht:
Q Does this photo have any significance?
A Yeah, the subject appeared to be shielding his face from the camera.
Q Okay. What did that tell you?
A That he knew where the camera was.
....
Q Does there appear to be anything in the subject's hand?
A Yes.
Q Could you say what it is?
A Not specifically.
Q And . . . is he [going to] try to do anything with that?
A Looks like he's trying to manipulate the door, that door handle with it.
Q Okay. Was he successful?
A No.
A-3309-21 8 Q What does it appear that the subject is doing in this area?
A Obtaining the manager's key that's on a lanyard behind the cash register.
Q Is that plainly visible?
Q Are the keys marked?
Q Based on your investigation, who knows that the keys are there?
A It could only be employees.
Q Does the suspect appear to be covering his face here?
Q In this photo?
A Not yet.
Q Okay. How about in [this still]?
Q Why would he cover his face here?
A The presence of the camera.
A-3309-21 9 The prosecutor also asked Vollbrecht whether the man "appeared to be carrying
a full book bag or another item on his back." Vollbrecht answered the bag
"looked full."
At the charge conference, the court asked defendant's counsel to review
the State's proposed jury charges for approval or to make any suggested changes.
Defense counsel suggested changes unrelated to this appeal. The court's final
jury charges included the following language:
It is your function to determine whether the witnesses['] identification of defendant is reliable and believable, or whether it is based on a mistake or for any reason is not worthy of belief.
You may consider whether the witness was exposed to opinions, descriptions, or identifications given by other witnesses . . . or to any other information or . . . influence[] that may have affected the independence of his or her identification. Such information can affect the independent nature and reliability of a witness identification and inflate the witness’s confidence in the identification.
If, after consideration of all of the evidence, you determine that the State has not proven beyond a reasonable doubt that James Skinner was the person who committed one or more of these offenses, you must find him not guilty of such offenses.
A-3309-21 10 After deliberation, the jury convicted defendant on both counts. The court
sentenced defendant to two concurrent five-year probation terms, one hundred
twenty hours of community service, and payment of $12,443.56 in restitution.
The restitution payments were to be made "over the period of probation in equal
monthly installments" as a condition of defendant's probation. The court also
ordered defendant to pay a $25 monthly probation supervision fee during his
five years of probation, totaling $1,500.
As to defendant's sentence, the court recognized defendant was a high
school graduate with sixteen years of bartending and hospitality experience, a s
well as work experience in construction and for a "tree service." It
acknowledged defendant was forty-one years old with no disabilities. It further
recognized he was consistently employed until the COVID-19 pandemic began
in 2020. Lastly, the court recognized defendant was in the process of earning a
commercial driver's license and planned to find a job in the trucking industry.
Considering these facts, the court found defendant has "the wherewithal to meet
[the] financial obligations imposed by the court, including the payment of
restitution," and nothing appeared to "impede his ability to be gainfully
employed."
Defendant raises the following points on appeal:
A-3309-21 11 POINT I
THE COURT ERRED IN ALLOWING KEVIN DUNN TO IDENTIFY DEFENDANT FOR THE FIRST TIME AT TRIAL.
POINT II
THE STATE ELICITED INADMISSIBLE LAY OPINION TESTIMONY FROM DETECTIVE VOLLBRECHT REGARDING WHAT THE SURVEILLANCE SHOWED AND WHY THE SUSPECT DID CERTAIN ACTIONS, WHICH IMPERMISSIBLY BOLSTERED THE STATE'S THEORY THAT THE SUSPECT MUST HAVE BEEN AN EMPLOYEE OF KELLY'S TAVERN.
POINT III
IT WAS PLAIN ERROR TO FAIL TO INSTRUCT THE JURY ON THE PORTION OF THE IDENTIFICATION CHARGE CONCERNING THE INFLUENCE OF FEEDBACK.
POINT IV
THE CUMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
POINT V
BECAUSE THE SENTENCING COURT FAILED TO ASSESS DEFENDANT'S FINANCIAL MEANS AND HIS ABILITY TO PAY THE $12,443.56 IN RESTITUTION AND $1,500 IN PROBATION SUPERVISION FEES, THIS COURT SHOULD REVERSE THESE AMOUNTS AND REMAND FOR
A-3309-21 12 CONSIDERATION OF DEFENDANT'S FINANCIAL MEANS.
II.
In reviewing a grant or denial of a motion to suppress, we "must uphold
the factual findings underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record." State v. Lamb, 218
N.J. 300, 313 (2014). A trial court's findings on the admissibility of
identification evidence are "entitled to very considerable weight." State v.
Farrow, 61 N.J. 434, 451 (1972). A finding that the identification procedures
were reliable should not be disturbed unless they fail the sufficient credible
evidence standard of review. State v. Adams, 194 N.J. 186, 203 (2008).
A.
We first address defendant's challenge that Dunn's in-court identification
of him should have been suppressed relying upon our Court's holding in State v.
Watson, 254 N.J. 558 (2023). We disagree. The trial and verdict in this matter
occurred prior to Watson being decided. The Court in Watson clearly concluded
its holding only applied prospectively when it found "[w]e apply the above
[identification] standard here and provide clearer rules going forward. Today's
holding applies to this and future cases." 254 N.J. at 589.
A-3309-21 13 Defendant alternatively argues the motion court erred by applying the
wrong standard and not holding a Wade/Henderson2 hearing. When applying
the foregoing principles, we find no abuse of discretion by the court's denial of
defendant's motion seeking to suppress Dunn's identification or by permitting
the in-court identification testimony of Dunn.
In New Jersey, for a defendant to be entitled to a Wade/Henderson
hearing, the defendant must first "proffer . . . some evidence of impermissible
suggestiveness" which could lead to a mistaken identification. Henderson, 208
N.J. at 238 (quoting State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div.
1993)). If a defendant presents sufficient evidence of impermissible
suggestiveness, the court should conduct an evidentiary hearing where the State
must offer proof that the proffered eyewitness identification is reliable based on
an analysis of several variables. Id. at 288-89.
However, "the ultimate burden remains on the defendant to prove a very
substantial likelihood of irreparable misidentification." Id. at 289. The court
then determines, based on a totality of the circumstances, whether defendant has
met that burden and the court should suppress the identification evidence. Ibid.
2 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011). A-3309-21 14 Our Supreme Court has noted, however, that a Wade/Henderson hearing
is not required for a "confirmatory" identification, "which is not considered
suggestive." State v. Pressley, 232 N.J. 587, 592 (2018). "A confirmatory
identification occurs when a witness identifies someone he or she knows from
before but cannot identify by name." Id. at 592-93 (citing National Research
Council, Identifying the Culprit: Assessing Eyewitness Identification 28
(2014)). The Court noted, by way of example, that the person identified "may
be a neighbor or someone known only by a street name." Id. at 593 (citing
Identifying the Culprit, at 22).
Dunn previously provided the police with detailed descriptions of the
burglar as having red hair, beard and a chest tattoo. Dunn testified he had seen
defendant in the Tavern four times during the burglary and had seen and
interacted with defendant in the past. Although he did not know defendant’s
name, Dunn testified he had seen and spoken with defendant multiple times
when defendant was a Tavern employee. We further conclude the defense had
ample opportunity at trial to cross-examine Dunn to diminish the reliability of
his in-court identification.
We recognize our reasoning differs from that of the trial court, but "[i]t is
a long-standing principle underlying appellate review that 'appeals are taken
A-3309-21 15 from orders and judgments and not from opinions . . . or reasons given for the
ultimate conclusion.'" State v. Washington, 453 N.J. Super. 164, 203-204 (App.
Div. 2018) citing State v. Scott, 229 N.J. 469, 479 (2017). "[B]ecause an appeal
is taken from a trial court's ruling rather than reasons for the ruling, we may rely
on grounds other than those upon which the trial court relied." Washington at
204 citing State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). See
also, e.g., Hayes v. Delamotte, 231 N.J. 373, 387 (2018) ("A trial court judgment
that reaches the proper conclusion must be affirmed even if it is based on the
wrong reasoning"). Therefore, we determine Dunn's identification was
constitutionally valid as a confirmatory identification.
B.
We now turn to defendant's argument raised for the first time on appeal
that the court erred by permitting certain testimony of Detective Vollbrecht.
This court reviews alleged trial errors for plain error when raised for the first
time on appeal. State v. McGuigan, 478 N.J. Super. 284, 291 (App. Div. 2024).
Under the plain error standard, an error warrants reversal "if it was 'clearly
capable of producing an unjust result,'" State v. Clark, 251 N.J. 266, 287 (2022)
(quoting R. 2:10-2), and creates "reasonable doubt as to whether the error led
A-3309-21 16 the jury to a result it otherwise might not have reached." State v. Jordan, 147
N.J. 409, 422 (1997).
We conclude defendant's argument fails to satisfy the plain error standard.
Although Vollbrecht's testimony was a narrative at certain times and portions of
his testimony were not based on his personal knowledge, his testimony did not
have the clear capacity to produce an unjust result and failed to create reasonable
doubt which caused the jury to find him guilty of the charged offenses.
The challenged testimony of Vollbrecht was a small part of the cumulative
identification evidence of defendant by the witnesses. Kevin Jr. testified he
recognized the person on the video as defendant based on the man's "walk, his
mannerisms, his height, just everything about him." Kevin Sr. testified he
watched the footage and agreed the footage depicted defendant based on
defendant's "distinctive walk, . . . height, and knowledge of the building." Kevin
Sr. further testified parts of the Tavern required someone "really ha[d] to know
how to maneuver in there" to find things. He added Skinner would have known
the keys were behind the bar because "only employees would know to look
there." Lynch testified he recognized defendant as the man in the footage.
Vollbrecht opined he had also "felt the subject [of the footage] resembled James
Skinner," as he was "familiar with Skinner" from growing up in Neptune City .
A-3309-21 17 Dunn's testimony described the man as bearded with red hair who walked
"funny, like he may have been drunk" or "had something in his" buttocks. Dunn
testified he "thought he was an employee" at the Tavern "because [he] saw him
on about three separate occasions while [he] was cleaning out the [beer] lines"
in the past. LaPoint testified he recognized the man as defendant based on his
appearance. Hendricksen also testified he recognized the man as defendant after
watching the footage for a "[f]ew minutes."
Those other witnesses also testified to the person's location, movements
and the person's familiarity with the Tavern. Also, the jury viewed the video at
trial and had the opportunity to determine whether the person was defendant
when considering the video and other evidence elicited at trial.
We further conclude, even assuming the trial court committed plain error
by permitting Vollbrecht's testimony, any such error was harmless. Under the
harmless error doctrine, "[a]ny error or omission shall be disregarded . . . unless
it is of such a nature as to have been clearly capable of producing an unjust
result." R. 2:10-2. See also State v. Macon, 57 N.J. 325, 338 (1971) (an
appellate court must determine "whether in all the circumstances there was a
reasonable doubt as to whether the error denied a fair trial and a fair decision on
the merits"). For the same reasons we previously stated when addressing
A-3309-21 18 Detective Vollbrecht's testimony under the plain error standard, we conclude the
alleged error posited by defendant was harmless.
III.
We now turn to defendant's argument that the court's failure to instruct the
jury on the portion of the identification charge concerning the influence of
feedback constituted plain error. After our review of the charge given by the
court, we conclude it clearly did not have the capacity for the jury to reach an
unjust result.
Defendant contends the trial court "inexplicably omitted" any mention of
witness feedback from its jury instructions. He argues the court had to explicitly
charge the jury on feedback because Kevin Sr., Kevin Jr., LaPoint, and
Hendricksen told each other who they thought was the man in the footage, and
the possibility of feedback was "central" to defendant's defense that their
identifications were unreliable. Defendant points out our Model Jury Charges
address this precise situation because feedback can "distort memory, create a
false sense of confidence, and alter a witness' report of how [they] viewed an
event," as our Supreme Court acknowledged in Henderson, 208 N.J. at 255.
The State contends the court's jury charges were not plain error, arguing
the court "made clear to the jury that because even good-faith identifications
A-3309-21 19 could be mistaken, it was important for the jury to scrutinize identification
testimony for outside influences." Specifically, the State points to the court's
instruction, "you should also consider the circumstances under which any out-
of-court identification was made, and whether it was the result of a suggestive
procedure." The State acknowledges the court did not use defendant's "now-
preferred wording" but contends the jury charges did not counteract the
considerable evidence it presented against defendant.
Model Jury Charges (Criminal), "Identifications: In-Court and Out-of
Court Identifications," at 11 (rev. May 18, 2020), includes the following
language:
Feedback occurs when police officers, or witnesses to an event who are not law enforcement officials, signal to eyewitnesses that they correctly identified the suspect. That confirmation may reduce doubt and engender or produce a false sense of confidence in a witness. Feedback may also falsely enhance a witness's recollection of the quality of his or her view of an event. It is for you to determine whether or not a witness’s recollection in this case was affected by feedback or whether the recollection instead reflects the witness's accurate perception of the event.
We conclude that even though the court's jury instructions failed to
include the above "feedback" instruction, they were sufficient because the jury
was alerted to consider the possibility that a witness's testimony could be
A-3309-21 20 influenced by "opinions, descriptions, or identifications given by other
witnesses." The court further warned the jury that witnesses can misidentify
suspects in general, and it was the jury's responsibility to find an identification
was reliable. We determine defendant advances no sound argument to show
using the "feedback" instruction to describe these concepts would have altered
the jury's verdict. Thus, we conclude any discrepancies between the court's jury
instruction and those argued by defendant were not plain error because we
conclude they were not "clearly capable of producing an unjust result." See R.
2:10-2.
IV.
Turning to defendant's argument that cumulative error by the court
requires reversal and a new trial, we posit that "the predicate for relief for
cumulative error must be that the probable effect of the cumulative error was to
render the underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007).
Because we have addressed and rejected each of defendant's arguments of
asserted error, we conclude defendant's position on appeal that the cumulative
impact of the errors denied defendant due process and a fair trial holds no merit.
A-3309-21 21 Finally, we address defendant's argument that the trial court's sentence
failed to assess defendant's financial means and his ability to pay before
imposing $12,443.56 in restitution and $1,500 in probation supervision fees
against defendant. Defendant asserts this failure requires us to remand the
matter to the court to consider defendant's financial means.
Defendant contends the court failed to consider his financial resources or
"likely future earnings" before ordering him to pay restitution, as required by
N.J.S.A. 2C:44-2(c)(2). He argues the court did not examine the salary he
earned in his previous jobs or estimate the salary he could earn from any future
job. He further claims the court did not compare any projected future salary
with his expenses. He compares his financial circumstances to those at issue in
State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div. 2001), where the
defendant's unemployed status affected his ability to make restitution.
Defendant also argues the court set forth no factual basis to impose a $25
monthly probation supervision fee, the maximum permitted by statute, N.J.S.A.
2C:45-1(d)(1). He asserts courts must consider a defendant's ability to pay the
fee when setting the amount of fees owed, just as when ordering restitution. He
further claims "the amount of the probation supervision fee in any individual
A-3309-21 22 case must be set in a manner" that does not "impede[] th[e] defendant's ability
to pay restitution" on top of the fee.
We are unpersuaded. As pointed out by the State, defendant did not
challenge the fairness of the restitution or request the trial court to order less
than full restitution. We conclude our holding in State v. Orji, 277 N.J. Super.
582 (App. Div. 1994) is apposite. In Orji, we concluded the trial court properly
"inferred [the] defendant has the ability to pay" and did not need to hold a
restitution hearing once the defendant conceded he had adequate financial
resources to make full restitution. 277 N.J. Super. at 589.
The court's determination also comports with the plain language in the
sentencing statutes, which states, "The court shall sentence a defendant to pay
restitution" if "[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)(2) (emphasis added). The statute
further defines "all financial resources of the defendant" as "including the
defendant's likely future earnings." Ibid. In reviewing defendant's employment
history, his progress towards a commercial driver's license, and the fact that he
did not challenge the appropriateness or amount of restitution the State sought,
we determine the court took into account defendant's future ability to pay. Cf.
State v. McLaughlin, 310 N.J. Super. 242, 264 (App. Div. 1998) (remanding for
A-3309-21 23 restitution hearing where the trial record contained no mention of the defendant's
likely future earnings).
Concerning the probation supervision fee, we conclude nothing in the
governing statute suggests the requirement to consider the defendant's ability to
pay extends to this fee. N.J.S.A. 2C:45-1(d)(1) cited by defendant only
contemplates the fee or fees "may be waived in cases of indigency upon
application by the chief probation officer to the sentencing court." The record
does not indicate such an application was made here. Further, we determine
defendant conflates the probation supervision fee under N.J.S.A. 2C:45-1 with
the fines contemplated in N.J.S.A. 2C:44-2, which are imposed when the
defendant "derived a pecuniary gain from the offense or the court" believes "a
fine is specially adapted to" deter that offense. N.J.S.A. 2C:44-2(a)(1). The
court is to consider the defendant's ability to pay the fine on top of restitution
under N.J.S.A. 2C:44-2(a)(2) and (3). No reference in the statute cited by
defendant is applicable to the probation supervision fee which we conclude is
not applicable to the above referenced statute. Ibid.
Therefore, we conclude the trial court properly considered defendant's
financial resources when ordering him to pay full restitution and the maximum
permitted probation supervision fee.
A-3309-21 24 To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed.
A-3309-21 25