NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0463-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAWAN INGRAM,
Defendant-Appellant. _____________________________
Submitted December 20, 2018 – Decided April 12, 2019
Before Judges Simonelli, Whipple and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-03-0827.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore Stephens II, Acting Essex County Prosecutor, attorney for respondent (Tiffany M. Russo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Dawan Ingram appeals from an August 9, 2016 judgment of
conviction for the murder of Najee Montague on a Newark street corner. Three
people witnessed Montague's shooting and identified defendant as the shooter.
A jury convicted defendant of: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and
(2); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a). We affirm defendant's conviction but remand to address sentencing error.
We discern the following facts from the trial record. On September 21,
2013, around 7:35 p.m., police officers responded to a disturbance at Salem
Street and South Orange Avenue in Newark. When officers arrived, Montague
was lying on the ground. D.H.,1 Montague's friend, had been inside a bodega
on the corner just moments before the shooting. D.H. did not see the shooter's
face. When D.H. was trying to help Montague, a bystander either showed him
where the shooter dropped the gun or handed the gun to D.H. D.H. took the gun,
ran down the street, and hid it in a backyard garage. He did not mention the gun
to police at the scene. Two days later, the police brought D.H. to the police
station for an interview.
1 We use initials to protect the identity of the eyewitnesses. A-0463-16T3 2 Detective Tyrone Crawley created a photo array and handed it to Detective
Murad Muhammad to show D.H. Muhammad administered the identification
and the process was recorded. D.H. recognized the men in two photos. When
D.H. selected photo four, Muhammad asked "what did he do?" to which D.H.
responded, "[h]e . . . supposedly shot my man[.]" Crawley entered the room
after D.H. made the identification, but D.H. refused to sign anything confirming
his identification. Instead, Crawley marked which photo D.H. identified. At
trial, D.H. testified he signed a letter stating he felt police pressured him into
selecting defendant's photo. Muhammad denied coercing D.H. into making an
identification.
The day after D.H. identified defendant as the shooter, he led Crawley to
where he hid the gun on Salem Street. Two live rounds were recovered from
the gun that were consistent with those recovered from the scene of the shooting.
H.J., who was also Montague's friend, was talking with him on the street
corner before the shooting. The police brought H.J. to the police station to
provide an identification. Crawley created the photo array and handed it to
Detective Eric Manns. The process was recorded.
H.J. selected defendant's photo as the shooter. Manns testified H.J.
appeared nervous but not under the influence of alcohol or drugs and was able
A-0463-16T3 3 to understand everything Manns said to him. At trial, H.J. testified he was very
drunk and high when he identified defendant and denied signing his name on the
form acknowledging his identification. H.J. also claimed not to recognize
himself in the video. On the witness stand, H.J. testified he remembered nothing
about the shooting or his identification and that he did not know defendant.
L.P., a registered nurse, often ran errands on the street corner where
Montague was shot. On the day Montague was murdered, she saw two men
conversing in front of the bodega when she suddenly heard a "pop" and saw
Montague fall to the ground. The shooter was standing about eight feet away
from her and, in court, she identified defendant as the shooter.
L.P. approached Montague and tried to help him. When the police arrived,
she gave them an alias. Later, L.P. explained she used this alias because she did
not want to get involved in the matter and used the alias to apply for credit cards.
The police took L.P. to the police station to provide a statement. When
asked whether she could identify the shooter, she said it was possible, but when
shown a group of photos, she did not make an identification. L.P. signed her
alias on the statement.
Two months later, police again asked L.P. to try to identify the shooter
from an array of photos. Manns again administered the identification and L.P.
A-0463-16T3 4 identified defendant as the shooter. She denied receiving any suggestion or
pressure to select defendant's photo. During her testimony, she explained she
originally used an alias to avoid involvement but ultimately decided to give her
real name when asked to make a second identification.
Prior to trial, defendant moved to suppress all three identifications.
Defendant argued the detectives did not follow the Attorney General's guidelines
in preparing and conducting the photo lineups because the detectives did not ask
certain prefatory questions, such as whether the witnesses talked with co-
witnesses prior to making the identification. The trial judge found no indicia of
suggestiveness and declined to grant defendant a Wade2 hearing.
The trial began on June 1, 2016. All three identification videos were
played for the jury. State witnesses included H.J., L.P., D.H., Crawley, Manns
and other officers, as well as ballistics expert Luke Laterza. Defense witnesses
included defendant's mother and other alibi witnesses. After the jury convicted
defendant on all counts, on August 5, 2016, the judge sentenced him to a fifty-
year term for the murder charge, with an eighty-five percent parole ineligibility
term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The weapons
convictions were merged for sentencing purposes, and defendant received a
2 United States v. Wade, 388 U.S. 218 (1967). A-0463-16T3 5 concurrent ten-year term, with five years parole ineligibility. A $500 Violent
Crimes Compensation Board (V.C.C.B.) fine was also levied as punishment for
the murder conviction. This appeal followed.
Through counsel, defendant raises the following points on appeal:
POINT I
BECAUSE THE IDENTIFICATIONS OF MR. INGRAM WERE THE PRODUCT OF IMPERMISSIBLY SUGGESTIVE SYSTEM VARIABLES THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING THE IDENTIFICATIONS INTO EVIDENCE WITHOUT FIRST PROPERLY DETERMINING THEIR RELIABILITY.
POINT II
THE COURT VIOLATED MR. INGRAM'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY ADMITTING "EXPERT" BALLISTICS TESTIMONY THAT IS CONTRARY TO THE CURRENT STATE OF THE SCIENCE AND FEDERAL LAW AND IS THEREFORE UNRELIABLE AND INADMISSIBLE UNDER [N.J.R.E.] 702.
A. Subjective Ballistics Toolmark Evidence Is Inadmissible Under [N.J.R.E.] 702 As It Is Unreliable.
B. Alternatively, This Court Should Remand The Matter For A [Rule] 104 Hearing As To The Scientific Reliability Of This Evidence, If Any.
A-0463-16T3 6 POINT III
THE SENTENCING COURT ERRONEOUSLY ANALYZED THE AGGRAVATING AND MITIGATING FACTORS AND IMPOSED AN EXCESSIVE SENTENCE. (Not Raised Below).
A. The Trial Court Erred In Imposing, Without Explanation, A $500 V.C.C.B. Fine For the Murder.
B. The Trial Court Erred In Finding Aggravating Factor One.
C. The Trial Court Erred In Finding Aggravating Factor Two.
Defendant, in a pro se supplemental brief, raises the following points:
POINT 1
A JUROR OVERHEARD THE ALLEGED WITNESS [H.J.] IN THE BATHROOM HAVING A CONVERSATION WITH SOMEONE WHILE ON A CELLULAR PHONE.
POINT 2
DEFENDANT/APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
POINT 3
TRIAL COURT ERRED IN ALLOWING DEFENDANT/APPELLANT'S PAROLE OFFICER TO TESTIFY AS WHETHER OR NOT DEFENDANT/APPELLANT WAS HOME BECAUSE
A-0463-16T3 7 HER TESTIMONY DEPENDED SOLELY ON AN ANKLE MONITOR THAT WAS NOT PRESERVED IN EVIDENCE OR PRESENTED TO THE JURY AND WAS QUESTIONABLE TO BE WORKING AROUND THE TIME OF THE INCIDENT.
POINT 4
DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL, BECAUSE PROSECUTION KNOWINGLY USED PERJURED TESTIMONY, THAT MAY HAVE DERIVED FROM WITNESS BEING THREATENED WITH PERJURY AND OR OTHER CRIMINAL CHARGES AFTER SHE LIED TO DETECTIVES ABOUT WHO SHE WAS UNDER OATH AND ADMITTED THAT SHE COMMITTED FRAUD.
POINT 5
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO COMMENT ON FACTS NOT SHOWN OR REASONABLY INFERRED FROM THE EVIDENCE IN THE CASE WHICH PREJUDICED THE DEFENDANT/APPELLANT.
POINT 6
PROSECUTION [INADVERTENTLY] OR INTENTIONALLY [WITHHELD] INTERROGATION VIDEO FROM OCTOBER 1ST, 2013 OF WHEN DEFENDANT WAS QUESTIONED AND CHARGED FOR THE CRIMES HE WAS CONVICTED OF WHICH CONTAINED POSSIBLE EXCULPATORY EVIDENCE.
A-0463-16T3 8 POINT 7
TRIAL COURT ABUSED THEIR DISCRETION IN OVERRULING AN OBJECTION BY THE DEFENSE COUNSEL AND ALLOWING A POLICE OFFICER TO TESTIFY IN A GROSS[3] HEARING TO DETERMINE THE RELIABILITY OF A VIDEO OF A PHOTO LINEUP THAT HE WAS NOT PHYSICALLY IN THE ROOM TO WITNESS.
I.
On appeal, defendant argues the judge abused her discretion by admitting
video of the out-of-court identifications. He argues D.H.'s identification was
impermissibly suggestive because the police allegedly told D.H. whom to
identify beforehand, Muhammad did not ask D.H. whether he spoke with anyone
about the identification prior to making it, and Muhammed did not conduct the
identification in a double-blind fashion. Defendant also suggests L.P. was
coerced to identify him because the police learned of her alias and used it as
leverage. Finally, he asserts H.J.'s identification was inadmissible because a
different officer than who administrated the identification was permitted, during
the Gross hearing, to view H.J.'s video identification even though the officer
was not present for the photo identification. We disagree as to all points.
3 State v. Gross, 121 N.J. 1 (1990). A-0463-16T3 9 A trial court should suppress an out-of-court identification if the defendant
can prove "a 'very substantial likelihood of irreparable misidentification.'" State
v. Henderson, 208 N.J. 208, 238 (2011) (quoting State v. Madison, 109 N.J. 223,
232 (1988)), modified on other grounds, State v. Anthony, __ N.J. __ (2019).
To obtain a Wade hearing, a defendant must make a preliminary showing of
"'some evidence of suggestiveness' in the identification procedure." State v.
Pressley, 232 N.J. 587, 596 (2018) (quoting Henderson, 208 N.J. at 288-89).
Suggestiveness can be proven through the presence of system variables, or those
circumstances of an identification within the State's control. Henderson, 208
N.J. at 248. System variable include: (1) whether a "blind" or "double-blind"
administrator is used; (2) whether pre-identification instructions are given; (3)
whether the lineup is constructed of a sufficient number of fillers that look like
the suspect; (4) whether the witness is given feedback before, during or after the
procedure; (5) whether the witness's confidence level was recorded before any
confirmatory feedback was given; (6) whether the witness is exposed to multiple
viewings of the subject; (7) whether a "showup" was used; (8) whether the
administrator asked the witness if he or she had spoken with anyone about the
identification; and (9) whether the eyewitness initially made no choice or chose
a different suspect or filler. Id. at 289-91. If this threshold showing is made,
A-0463-16T3 10 the State must demonstrate the identification is reliable "accounting for system
and estimator variables." Id. at 289. The ultimate burden to prove "a very
substantial likelihood of irreparable misidentification" remains with the
defendant at all times. Ibid.
Here, the judge did not abuse her discretion by denying defendant's Wade
motion seeking to suppress D.H.'s and L.P.'s identifications. She properly
observed a hearing was only required upon a showing of some evidence of
impermissible suggestiveness. The judge also properly bifurcated the analysis
and first considered whether the identification procedure itself was unduly
suggestive. Thus, upon finding no evidence of suggestiveness, the judge did not
need to consider whether estimator variables were present.
In particular, there was nothing suggestive about L.P.'s delay in
identifying defendant. The judge expressed a willingness to consider this
argument under Rule 104 before L.P. testified at trial. But when the time came,
defendant made no objection, and L.P. testified unimpeded.
We also reject defendant's suggestion that D.H. was coerced into selecting
defendant's photo. That argument is directly contradicted by D.H.'s statement,
"[h]e . . . supposedly shot my man[.]" after Officer Muhammad asked why he
selected defendant's photo. Whether the account of the identification D.H. gave
A-0463-16T3 11 on the stand was to be believed was a credibility question for the jury. As for
the argument L.P.'s identification was coerced because the police knew she used
an alias, her identification was, like D.H.'s, a matter of credibility rather than
admissibility, and it was fully aired for the jury at trial.
During the Gross hearing regarding H.J.'s identification of defendant,
defense counsel objected to Detective Rashaan Johnson's testimony about the
video because he was not present for the photo identification. The judge
overruled the objection. The transcript reveals Officer Johnson did not testify
about the photo identification or anything else outside his personal knowledge.
Thus, we discern no abuse of the court's discretion in permitting him to observe
and testify about the video during the Gross hearing.
II.
We also reject defendant's newly-minted argument that the expert
testimony concerning the murder weapon should have been excluded.
Defendant did not object to the expert's testimony at trial. Therefore, we review
for plain error. R. 2:10-2; State v. Nesbitt, 185 N.J. 504, 516 (2006).
Nine shell casings were recovered at the scene and two live rounds were
found in the gun D.H. hid on Salem Street. Luke Laterza, the head firearms
A-0463-16T3 12 examiner at the Newark Police Ballistics Laboratory, testified to identify the
firearm and ammunition.
Laterza identified the firearm retrieved from D.H. as a "nine-millimeter
[Sturm] Ruger semi-automatic pistol"4 and observed the live rounds were
stamped by the name of their manufacturer, Speer. The nine shell casings were
also made by Speer for a nine-millimeter Luger firearm. Each time a round is
discharged, the gun's firing pin or breech face makes an imprint on the cartridge
case. Laterza opined the imprints on all nine shell casings were identical. Thus,
Laterza concluded all nine rounds were "in fact" fired from the same firearm.
When compared to the markings made by the firearm recovered, Laterza
concluded the bullets were fired from the gun D.H. led police to retrieve.
Defendant argues Laterza's opinion was subjective and not supported by
objective, reliable, and scientific analysis.5 Defendant seeks, as a general
4 The transcripts use "Luger" and "Ruger" interchangeably when describing the firearm. Neither party has indicated this is a meaningful difference. 5 Firearm toolmark identification is performed by conducting a side -by-side comparison of a cartridge case from a round found in the firearm versus cartridge casings found at the scene. The examiner uses a comparison microscope to visually compare the markings on the cartridge case found in the weapon versus those found at the scene. If the markings match, the examiner opines the cartridge casings found at the scene were fired from the recovered firearm. Defendant argues such an assessment is subjective (because it is a visual
A-0463-16T3 13 matter, a re-examination of firearm toolmark identification expert testimony.
Defendant's chief argument is that firearm toolmark experts should not be
permitted to testify with certainty the bullet casings found at the scene were fired
from the gun examined. He points out the expert has no way to rule out that the
bullet was not fired from a different, identical gun. Although at least one federal
court has discussed this issue, United States v. Willock, 696 F. Supp. 2d 536 (D.
Md. 2010), no New Jersey court has addressed it, and we need not address it
here.6 Here, D.H. testified the shooter dropped the gun at the scene, D.H.
acquired it, and he turned it over to police. Accordingly, there is little doubt the
State's expert examined the gun used in the shooting.
examination) and does not account for class or subclass characteristics. Class characteristics, in the firearms context, are those markings unique to a make and model of a particular firearm or ammunition. Nat'l Research Council, Strengthening Forensic Science in the United States: A Path Forward 152 (2009). What a visual examination cannot rule out is the possibility that the cartridge casings recovered at the scene possess the same class or subclass characteristics as the firearm under examination but were fired from a different firearm of the same make and model. This prevents the expert from assigning a probability or error rate to the examination because it is entirely subjective and therefore, in defendant's opinion, unreliable. 6 The expert testimony in this case was admitted before our Supreme Court explained the federal Daubert standard should be incorporated by New Jersey courts to assess the admissibility of expert testimony. In re Accutane Litig., 234 N.J. 340, 348, 398 (2018) (discussing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)).
A-0463-16T3 14 III.
Also, for the first time on appeal, defendant argues the trial court erred by
not giving curative instructions after two juror irregularities, the State needed to
prove his ankle bracelet was functioning before his probation officer could
testify, the prosecutor's statements during summation constituted misconduct,
and he was deprived of effective assistance of counsel. We review for plain
error. None of the arguments have merit. 7
During a break in testimony, Juror Two reported to a court officer that
while he was in the bathroom, he overheard a man on a phone telling someone,
"I don't know why they're calling me. I don't know anything." The man also
said "don't worry, we've been together a long time. I know you a long time, so
don't worry. I know nothing." When asked whether he could continue to be fair
and impartial, Juror Two believed he could not. Juror Two said he "could listen
to the facts," but what he overheard tainted his view of "the witness," because
he could not believe "how someone could forget so easily a[n] experience like
7 Defendant also alleges the prosecutor withheld an exculpatory video recording of when the police brought defendant in for questioning. Defendant fails to point us to any place in the record where this allegation is substantiated. Therefore, we decline to review it.
A-0463-16T3 15 this."8 The trial judge excused Juror Two and questioned the rest of the jury.
All but one remaining juror said Juror Two started to tell the group what he
overheard, but they stopped him and informed the court. None of the remaining
jurors said Juror Two told them anything that would affect their ability to be
impartial.
During the trial, Juror One informed the judge the Essex County
Prosecutor's Office executed a search warrant at her son's house in an unrelated
case. She said this would not affect her ability to be impartial but added the
search was a surprise to her, and she was unsure whether it would decrease her
focus on the trial. After a discussion with counsel, the trial court did not dismiss
Juror One but instructed her to let the court know if her concentration was
diminished.
On appeal, defendant argues the trial judge should have given a curative
instruction after both juror incidents. We discern no abuse of discretion.
"Ultimately, the trial court is in the best position to determine whether the jury
has been tainted." State v. R.D., 169 N.J. 551, 559 (2001). "The trial court must
use appropriate discretion to determine whether the individual juror, or jurors,
'are capable of fulfilling their duty to judge the facts in an impartial and unbiased
8 Juror Two presumed the man on the phone was H.J. A-0463-16T3 16 manner, based strictly on the evidence presented in court.'" Id. at 558 (quoting
State v. Bey, 112 N.J. 45, 87 (1988)). Curative instructions are necessary to
mitigate potential prejudice swept into the trial by inadmissible evidence. State
v. Rivera, 437 N.J. Super. 434, 461 (App. Div. 2014).
The trial judge dismissed Juror Two, and she voir dired remaining jurors
and reminded them of their duty to be impartial, which was effectively a curative
instruction. Juror One was instructed to inform the court if she felt she could
not continue, and she felt she could continue to be impartial. No further curative
steps were necessary.
Next, defendant argues the trial judge should not have permitted
defendant's probation officer to testify about his electronic curfew. Police were
alerted to the murder at approximately 7:35 p.m. Defendant's mother testified
defendant was at home with her at 7:25 p.m. In rebuttal, the State called
defendant's parole officer. Defendant was wearing an electronic monitoring
device that registered when defendant entered and exited through the front door
of his mother's apartment. Defendant's probation officer testified her logs
reflected that defendant returned home at 7:45 p.m.
The trial court conducted a Rule 104 hearing on the admissibility of the
parole officer's testimony and ruled the probative value of defendant's location
A-0463-16T3 17 was not outweighed by the prejudicial fact he was on parole. Defendant argues
the testimony should have been excluded because the State did not present the
ankle bracelet to the jury to prove it functioned.
"[A] trial court's evidentiary rulings are 'entitled to deference absent a
showing of an abuse of discretion, i.e., there has been a clear error of judgment.'"
State v. Harris, 209 N.J. 431, 439 (2012) (alteration in original) (quoting State
v. Brown, 170 N.J. 138, 147 (2001)). We will reverse an evidentiary ruling only
where "there has been a clear error of judgment" that resulted in "a manifest
denial of justice[.]" State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting Brown,
170 N.J. at 147).
We detect no abuse of discretion in admitting the probation officer's
testimony. Whether the probation officer was more or less credible because she
did not produce the ankle bracelet was for the jury to decide.
Next, defendant contends the prosecutor committed misconduct during
summation by commenting on facts outside the evidence when he suggested
D.H. lied when he denied knowing defendant. Defendant also takes issue with
the prosecutor's argument that defendant had time to commit the murder and
return home by 7:45 p.m.
A-0463-16T3 18 The prosecutor's duty to achieve justice does not forbid a prosecutor from
presenting the State's case in a "vigorous and forceful" manner. State v.
Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Buchanis, 26 N.J. 45, 56
(1958)). However, closing statements must be confined to "comments
[regarding] evidence revealed during the trial and reasonable inferences to be
drawn from that evidence." State v. Reddish, 181 N.J. 553, 641 (2004) (quoting
State v. Smith, 167 N.J. 158, 177 (2001)). During closing argument, a
prosecutor may not: "make inaccurate legal or factual assertions," State v. Frost,
158 N.J. 76, 85 (1999), make an argument contrary to the facts or reference
evidence the court has ruled inadmissible, State v. Ross, 249 N.J. Super. 246,
250 (App. Div. 1991), or "express a personal belief or opinion as to the
truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super.
602, 605 (App. Div. 1993).
The prosecutor's comments herein did not rise to the level of misconduct.
It was up to the jury to determine whether to believe D.H.'s identification or his
in-court testimony where he recanted. The prosecutor was permitted to suggest
the jury infer D.H. was lying on the stand. Moreover, the jury was free to infer
how fast defendant was driving because the State presented time-stamped
A-0463-16T3 19 security footage showing defendant driving away from the scene with enough
time to return home by 7:45 p.m.
Next, defendant argues he was denied effective assistance of counsel but
does not offer a reason why his trial counsel's performance fell below an
acceptable standard. "Our courts have expressed a general policy against
entertaining ineffective-assistance-of-counsel claims on direct appeal because
such claims involve allegations and evidence that lie outside the trial record."
State v. Preciose, 129 N.J. 451, 460 (1992). But we acknowledge a "defendant
should not be required to wait until post-conviction relief to raise the issue [if]
the trial record discloses the facts essential to his ineffective assistance claim."
State v. Allah, 170 N.J. 269, 285 (2002). Because defendant does not explain
how his trial counsel was ineffective, we cannot review his claim.
IV.
Finally, defendant was sentenced to a fifty-year term and assessed a $500
V.C.C.B. penalty on the murder conviction. He argues the sentence was
premised on an erroneous finding of aggravating factors one and two. Defendant
also contests the V.C.C.B. penalty as excessive. We affirm the sentence, but
reverse the V.C.C.B. fine and remand for the judge to address the amount of the
fine.
A-0463-16T3 20 The trial judge found defendant's act to be "especially heinous, cruel and
depraved" because defendant shot the victim, who was among a group of
bystanders on a busy street corner, seven times, including three times in the
back. However, the judge made no explicit finding of aggravating factor one,
and defendant now argues the judge relied on the heinous nature of defendant's
acts for sentencing purposes. The trial judge did make an explicit finding of
aggravating factor two. The judge considered Montague to be vulnerable
because defendant shot him in the back without provocation. Defendant argues
this was error because Montague did not lack the capacities of a typical adult
and was not restrained or previously wounded. However, N.J.S.A. 2C:44-
1(a)(2), "does not limit 'vulnerability' to age or other physical disabilities of the
victim. It expressly includes 'any other reason' that renders the victim
'substantially incapable of exercising normal physical or mental power of
resistance.'" State v. O'Donnell, 117 N.J. 210, 218-219 (1989) (quoting N.J.S.A.
2C:44-1(a)(2)). We discern no abuse of the court's discretion in her application
of sentencing factors.
N.J.S.A. 2C:43-3.1(a)(1) required the trial judge to assess defendant a fine
of "at least $100.00, but not to exceed $10,000.00" for his murder conviction.
In State v. Gallagher, we explained when a court imposes a higher penalty than
A-0463-16T3 21 the statutory minimum, the court must demonstrate "some relationship between
[the] defendant's ability to pay over the course of his incarceration and parole,
and the actual [V.C.C.B.] penalty imposed." 286 N.J. Super. 1, 23 (App. Div.
1995). Necessarily, this finding must be made on the record. State v. Swint,
328 N.J. Super. 236, 264 (App. Div. 2000). Here, the trial court assessed a $500
V.C.C.B. fine without giving a corresponding reason why a departure from the
statutory minimum was warranted. We remand for the trial judge to make the
required findings or correct the amount of the fine.
Defendant's conviction is affirmed and the matter is remanded for
resentencing consistent with this opinion.
A-0463-16T3 22