NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4034-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES WOETZEL,
Defendant-Appellant. ______________________________
Argued March 10, 2020 – Decided April 28, 2020
Before Judges Yannotti, Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15-05-0385.
Margaret Ruth McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret Ruth McLane, of counsel and on the briefs).
Ali Y. Ozbek, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Ali Y. Ozbek, of counsel and on the brief).
PER CURIAM Defendant James Woetzel was tried before a jury and found guilty of first-
degree vehicular homicide and other offenses, as charged in a Passaic County
indictment. Defendant appeals from the judgment of conviction entered by the
trial court. We affirm.
I.
On May 4, 2015, defendant was charged with first-degree vehicular
homicide in violation of N.J.S.A. 2C:11-5(b)(3) (count one), for causing the
death of Donna Wine while recklessly operating his vehicle while intoxicated
within 1000 feet of a school; second-degree vehicular homicide for causing the
death while operating his vehicle recklessly, but not intoxicated, in violation of
N.J.S.A. 2C:11-5A (count two); second-degree leaving the scene of a motor
vehicle accident resulting in death in violation of N.J.S.A. 2C:11-5.1 (count
three); and first-degree aggravated manslaughter in violation of N.J.S.A. 2C:11-
4(a) (count four).
The evidence presented at the suppression hearing and trial showed that
on August 10, 2014, defendant drove his pickup truck through police barricades
and into an open-air farmer's market in Hawthorne, injuring pedestrians, and
causing the death of Donna Wine. When police arrived at the scene, defendant
was mumbling, claimed he did not know what happened, and "blacked out"
A-4034-17T4 2 before the accident. He was sweaty, experienced difficulty breathing, had a fast
pulse, and was agitated. After being transported to the emergency room at St.
Joseph's Regional Medical Center (St. Joseph's) for an evaluation, defendant
eventually became mentally alert, oriented, and able to follow commands.
Defendant could not recall anything about the accident. His urine screen tested
negative for illicit drugs.
Detective David Ware from the Passaic County Prosecutor's Office visited
defendant at St. Joseph's and asked for his consent to draw blood for a drug and
alcohol analysis. Defendant readily agreed to the testing of his blood, insisting
that there was "nothing" in it that related to the investigation. After being
apprised of his right to refuse, defendant consented to the blood draw and signed
a Hawthorne Police Department form that stated:
I, James Woetzel, hereby authorize and consent to the taking of a sample of my blood and/or urine for an analysis to determine the presence of alcohol and/or controlled dangerous substances [(CDS)]. The blood will be extracted in a medically acceptable manner by a qualified professional. I understand that I have the absolute right to refuse to provide this sample(s).
Shortly after defendant's blood sample was taken, he was discharged and
voluntarily accompanied Ware and another officer to the Passaic County
A-4034-17T4 3 Prosecutor's Office to give a statement. After waiving his Miranda1 rights,
defendant gave a recorded interview that was played for the jury at trial. In the
interview, defendant stated that a few hours before the subject accident, he went
to Micro Center to purchase computer parts and "Dust-Off," an aerosol product
used to clean dust from electronics. He also admitted he caused an accident a
few years earlier in Fair Lawn when he similarly "blacked out" and explained,
"the same [expletive] thing happened" that time as what happened earlier that
day in Hawthorne.
On August 18, 2014, Hawthorne police delivered defendant's blood
sample to the State Police laboratory for a toxicological analysis. Because of
the similarities in the accidents, the Hawthorne police also requested that
defendant's blood be tested for aerosol "huffing" substances. Pursuant to a
search warrant executed on August 20, 2014, the police uncovered a Micro
Center bag, a canister of Dust-Off on the passenger seat of defendant's pickup
truck, and a receipt confirming he purchased Dust-Off at 1:21 p.m. on the day
of the accident, less than an hour before losing consciousness. A similar
scenario occurred relative to the 2012 collision.
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-4034-17T4 4 Dust-Off contains difluoroethane (DFE). The canister found in
defendant's truck was missing its safety tab and was more than a quarter empty.
DFE can be an intoxicant if inhaled and cause brain impairment.
On August 22, 2014, police purchased two canisters of Dust-Off and sent
them, along with the canister found in defendant's vehicle, to the Central
Regional Laboratory of the New Jersey State Police Office of Forensic Sciences
(OFS) for a comparative weight analysis. The Dust-Off canister retrieved from
defendant's truck weighed 437.67 grams, which was about 158 grams less than
the new canisters purchased.
Min Tang, a forensic analyst with the toxicology unit of the OFS, tested
defendant's blood using a gas chromatography-mass spectrometry (GC-MS)
machine. Defendant's blood tested negative for alcohol and CDS's, but positive
for DFE. At the suppression hearing, Monica Tramontin, supervisor of the
toxicology unit of the OFS and a scientist employed by the State Police
laboratory for thirty years, testified about the laboratory procedures for testing
blood for impairing substances, including DFE. She described DFE as an
odorless, volatile compound used as an industrial refrigerant and a propellant in
aerosol products, including Dust-Off. Tramontin testified that when inhaled,
A-4034-17T4 5 DFE travels from the blood to the brain and can cause intoxication and
impairment. After being ingested, DFE remains in the body only a few hours.
Tramontin also stated that in toxicological blood analyses in fatal cases,
the state laboratory always tests the sample for drug content irrespective of the
blood alcohol reading, whether law enforcement requests it or not. A blood
sample is placed in the mass spectrometer to determine the molecular fingerprint
of the detected gas. Tramontin further testified that the molecular fingerprint o f
DFE is unique and cannot be mistaken for any other substance. She also testified
that DFE in the human body can cause depletion of oxygen, the hampering of
motor functioning and hand-eye coordination, difficulty breathing, and loss of
consciousness.
The State also presented testimony at the motion hearing from Dr. Robert
Pandina, who was qualified as an expert in psychopharmacology. Pandina
testified that after pressing the lever on the canister of Dust-Off, the substance
would enter the lungs and "rapidly find [] its way to the blood supply . . . within
seconds." He also stated that DFE remains in the blood for about four to five
hours. Here, defendant's blood was drawn at 6:28 p.m., approximately four and
one-half hours after the accident. According to Pandina, following the euphoria
A-4034-17T4 6 resulting from inhaling DFE, a user may experience confusion, cognitive
dysfunction, and difficulty with motor coordination.
Prior to trial, the trial judge denied defendant's motion to suppress the
blood test results, information relating to the 2012 car accident, and defendant's
prior purchases of Dust-Off. The judge determined that the initial extraction of
defendant's blood and initial tests for alcohol and CDS were lawful, and the later
testing of the blood for DFE was not a violation of the Fourth Amendment.
As to the prior accident, the judge found the evidence could be admitted
at trial because it was intrinsic to the charged offenses. During the trial, the
judge gave a limiting instruction to the jury that the evidence could only be
considered to show an absence of mistake as to defendant's loss of
consciousness. The judge also instructed the jury that the evidence could be
considered in determining if defendant consciously disregarded a known risk
and showed extreme indifference to human life when he operated his truck on
the date of the subject accident.
The jury found defendant guilty of vehicular homicide and aggravated
manslaughter. On December 1, 2017, the trial judge merged count two into
count one and sentenced defendant to twenty-years imprisonment, subject to the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also received a
A-4034-17T4 7 concurrent twenty-year term of incarceration subject to NERA on count four,
aggravated manslaughter. The judge ordered defendant to pay $12,750 in
restitution, in addition to statutory fines and penalties.
Defendant presents the following arguments on appeal:
POINT ONE
THE BLOOD-TEST RESULTS MUST BE SUPPRESSED BECAUSE TESTING DEFENDANT'S BLOOD FOR A CHEMICAL THAT IS NOT A [CDS] EXCEEDED THE SCOPE OF HIS CONSENT.
POINT II
EVIDENCE OF A PRIOR CAR ACCIDENT ALLEGEDLY CAUSED BY DEFENDANT'S INTOXICATION WAS INADMISSIBLE. THE STATE COULD NOT PROVE THE CAUSE OF THE PRIOR ACCIDENT, AND EVEN IF [IT] COULD, ITS ADMISSION WAS SO UNDULY PREJUDICIAL THAT IT TAINTED DEFENDANT'S ENTIRE TRIAL.
POINT III
THE STATE'S TWO EXPERT WITNESSES [MS. TRAMONTIN AND DR. PANDINA] WERE NOT QUALIFIED TO TESTIFY ABOUT [DFE], AND THEIR TESTIMONY SHOULD HAVE BEEN EXCLUDED UNDER [RULES] 702 AND 703.
POINT IV
THE DEFENDANT'S SENTENCE OF TWENTY YEARS WITH AN [EIGHTY-FIVE PERCENT]
A-4034-17T4 8 PAROLE DISQUALIFIER IS MANIFESTLY EXCESSIVE. II.
We will begin our review with defendant's argument that his blood test
results were erroneously admitted into evidence. He contends that while he
consented to a search of his blood for alcohol or CDS's, the police exceeded the
scope of his consent by further searching his blood for aerosol "huffing"
substances, such as DFE.
The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution preserve "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures . . . ." U.S. Const. amend. IV; accord N.J. Const. art. I, ¶
7. "[A] blood test is an 'intrusion[ ] into the human body' and therefore
constitutes a search and seizure within the meaning of the Fourth Amendment."
State v. Zalcberg, 232 N.J. 335, 346 (2018) (second alteration in original)
(quoting Schmerber v. California, 384 U.S. 757, 767 (1966)).
While a search pursuant to a warrant is presumptively valid, State v.
Robinson, 200 N.J. 1, 7 (2009), a warrantless search is presumed invalid "unless
one of the few 'well-delineated exceptions to the warrant requirement' applies."
Zalcberg, 232 N.J. at 345 (quoting State v. Gonzales, 227 N.J. 77, 90 (2016)).
A-4034-17T4 9 One of these exceptions is the consent doctrine. State v. Hagans, 233 N.J. 30,
39 (2018).
"[U]nder Article I, paragraph 7 of the New Jersey Constitution an y
consent given by an individual to a police officer to conduct a warrantless search
must be given knowingly and voluntarily." State v. Carty, 170 N.J. 632, 639
(2002), modified, 174 N.J. 351 (2002). "To be voluntary the consent must be
'unequivocal and specific' and 'freely and intelligently given.'" State v. King, 44
N.J. 346, 352 (1965) (citation omitted); accord State v. Shaw, 237 N.J. at 619
(citing Hagans, 233 N.J. at 41-42).
"The burden is on the State to show that the individual giving consent
knew that he or she 'had a choice in the matter.'" Carty, 170 N.J. at 639 (quoting
State v. Johnson, 68 N.J. 349, 354 (1975)). "The ultimate determination must
rest on the facts of each individual case . . . [a]nd a court's determination must
be based on the totality of the circumstances and be supported by sufficient
credible evidence in the record." Shaw, 237 N.J. at 619 (quoting Hagans, 233
N.J. 30 (2018)).
"[W]hen police rely on a consent to search, the search that may be
conducted pursuant thereto is limited by the scope, whether express or implied,
of the consent." State v. Younger, 305 N.J. Super. 250, 256 (App. Div. 1997).
A-4034-17T4 10 "The scope of a search extends to what is objectively reasonable, which is
defined as what 'the typical reasonable person [would] have understood' the
scope to include." State v. Hampton, 333 N.J. Super. 19, 29 (App. Div. 2000)
(alteration in original) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)).
We reject defendant's argument because viewed in the context of the
circumstances presented, an objectively reasonable person would have
understood the scope of defendant's consent to include the State's chemical
testing for DFE.
Here, during the interview, Ware told defendant the police were
investigating the cause of the accident and that the "most important pieces of the
puzzle" were what happened during the collision itself, when defendant claimed
to have "blacked out." Defendant insisted he did not remember what had
happened, offered to have "someone . . . put me under," and volunteered that he
was in a prior accident after having blacked out.
When Ware asked if he had seen a doctor about the prior blackout,
defendant offered, unsolicited, "[t]est my blood, there's nothing in my blood."
(Emphasis added). Later defendant said to Ware, "maybe something happened
to--to me or I was on drugs or something," and then once again brought up the
A-4034-17T4 11 subject of analyzing his blood, asking, "[d]id you get my blood? You'll see it's
nothing wrong with my blood. So why--why else would I do that?"
As the motion judge aptly recognized, "[t]he word nothing is commonly
understood to be an all-encompassing denial," and because defendant "insisted
there would not be anything incriminating in his blood and thus encouraged it
to be tested . . . implicit in this global denial [was] the assumption by the speaker
that everything reasonably within the scope of investigation will be tested for."
Moreover, the search for DFE was within the scope of the investigation because
police were investigating possible causes of this fatal accident and DFE, an
intoxicating substance, could be evidence of intoxication, if detected.
Therefore, as noted by the motion judge, because DFE was "a substance
capable of causing a condition of intoxication, inebriation, stupefaction or the
dulling of the brain or nervous system" testing defendant's blood for the
substance "was justified and proper in investigating the cause of the August 10,
2014 motor vehicle accident." We agree.
"[A]n appellate court reviewing a motion to suppress 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. Elders, 192
N.J. 224, 243 (2007) (internal quotation marks and citations omitted). "An
A-4034-17T4 12 appellate court should not disturb the trial court's findings merely because 'it
might have reached a different conclusion were it the trial tribunal' or because
'the trial court decided all evidence or inference conflicts in favor of one side' in
a close case." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Rather, "[a] trial court's findings should be disturbed only if they are so
clearly mistaken 'that the interests of justice demand intervention and
correction.'" Ibid. (quoting Johnson, 42 N.J. at 162). Appellate courts "owe no
deference, however, to conclusions of law made by trial courts in suppression
decisions," which are reviewed de novo. State v. Sencion, 454 N.J. Super. 25,
31-32 (App. Div. 2018) (citing State v. Watts, 223 N.J. 503, 516 (2015)).
Defendant further contends that his consent was limited to a search for
alcohol or CDS's in his blood and DFE is not a CDS as defined in N.J.S.A.
2C:35-2 and scheduled in N.J.S.A. 24:21-5 to -8.1. His argument is devoid of
merit.
We are guided by the Court's holding in A.A. ex rel. B.A. v. Attorney
General, 189 N.J. 128 (2007), pertaining to the permissible use of DNA
evidence. In that case, the defendant challenged the constitutionality of the
DNA Database and Databank Act of 1994 (The DNA Act), N.J.S.A. 53:1-20.17
to -20.28, by contending that it was an unconstitutional search to analyze DNA
A-4034-17T4 13 samples "to solve crimes committed before the tests were performed . . . ." A.A.,
189 N.J. at 138. The Court disagreed, holding that "once a search and seizure
is completed, the subsequent use of the evidence does not constitute an
independent search because there is no additional invasion of the owner's
privacy interest." Id. at 139. [I]f "the initial search [was] lawful, the subsequent
use of the evidence seized is not a search that implicates the Fourth
Amendment." Ibid.
Defendant relies principally on two cases in support of his claim that
analyzing his lawfully seized blood for evidence of DFE was an unconstitutional
search, arguing that police cannot ask to look for one thing, and then instead
conduct a much broader general search.
In State v. Leslie, 338 N.J. Super. 269, 272 (App. Div. 2001), following a
motor vehicle stop, an officer asked the defendant driver for consent to "look
inside the passenger's compartment" for his driving credentials, which he had
been unable to produce upon request. We concluded that the subsequent search
of the trunk was a broader search than the officer had described and, because it
exceeded the scope of his consent, it was illegal. Id. at 275.
In Younger, we held that the police, while lawfully executing a consent
search for a firearm, unlawfully "exceeded the scope of the authority conferred
A-4034-17T4 14 . . . by the consent" by opening a three-by-two-inch change purse that "obviously
could not have contained a gun and . . . anything sharp or hard that might have
been inside it could have been felt without opening it . . . ." 305 N.J. Super. at
253-54.
Leslie and Younger are clearly distinguished because in both cases,
lawfully, authorized consent searches unlawfully extended to areas beyond the
scope of the authorization granted. And, the challenged portion of the searches
vitiated the voluntariness of the consent granted because separate privacy
interests were invaded.
In this case, however, the State's GC-MS test for DFE was a toxicological
blood analysis in furtherance of the vehicular homicide investigation, which, in
contrast to Leslie or Younger, was the same stated purpose for which the consent
search was initially authorized. Accordingly, these cases do not support
defendant's claim that the State's DFE analysis of his lawfully obtained blood
sample was an unconstitutional search.
Defendant also relies on two cases from decisions in other jurisdictions in
support of his contention that the testing here violated the Fourth Amendment:
State v. Gerace, 437 S.E.2d 862 (Ga. Ct. App. 1993), and State v. Binner, 886
P.2d 1056 (Or. Ct. App. 1994). When interpreting the Federal Constitution, our
A-4034-17T4 15 courts are not bound by other jurisdictions, but only by decisions of the Supreme
Court of the United States and our own precedents. State v. Witczak, 421 N.J.
Super. 180, 194-95 (App. Div. 2011).
We conclude both cases are distinguishable from the matter under review.
In Gerace, the defendant had consented to a blood draw following a motor
vehicle accident in the State's investigation for a driving while intoxicated
charge. 437 S.E.2d at 862-63. Unlike this case, the blood evidence obtained in
Gerace was used solely to obtain DNA to prosecute the defendant for an earlier
offense that had no connection to the accident under investigation. Ibid.
Binner is also distinguishable factually and legally. The defendant in
Binner, while agreeing to allow his blood to be tested for alcohol, "expressly
refused to consent to a test of his urine for drugs." 886 P.2d at 1059. The limited
consent in Binner is distinguishable from defendant's broad invitations here for
the police to search his blood because he was confident there was "nothing" in
it to explain his lapse of consciousness. As to legal interpretation, the Oregon
court's holding was not premised on the Fourth Amendment, but on its analysis
of the defendant's privacy interests under the Oregon Constitution. Therefore,
we are unpersuaded by the legal authorities presented by defendant.
A-4034-17T4 16 Here, there is no question that the initial extraction of defendant's blood
and the subsequent blood-alcohol analysis were lawful pursuant to defendant's
knowing and voluntary consent. Therefore, the second toxicological analysis of
the lawfully seized blood was not a Fourth Amendment search because no
"additional invasion" of defendant's privacy was involved. Ibid. Although DFE
is not a scheduled CDS under N.J.S.A. 2C:35-2, the compound, when inhaled,
can cause intoxication, which could have subjected defendant to liability for
driving while intoxicated under N.J.S.A. 39:4-50(a)(3) regardless of whether
DFE was scheduled. See State v. Federico, 414 N.J. Super. 321, 326-27 (App.
Div. 2010) (citation omitted) ("DWI is an absolute liability offense and
intoxication on chemicals or otherwise is not a defense.").
The record clearly shows defendant knew the police were investigating
D.W.'s death as a vehicular homicide and that he consented to having his blood
searched for evidence of drugs or alcohol. The fact that DFE is not a scheduled
substance is immaterial, because the language used in the consent form does not
define the parameters of the authorization granted, which is instead determined
by the objective circumstances. Leslie, 338 N.J. Super. at 275 (holding in
consent search of automobile following a roadside detention, that "general
A-4034-17T4 17 language of the consent document" did not determine scope of consent when
that language was inconsistent with officer's "oral representation[.]").
We are convinced that analyzing defendant's blood for "huffing"
substances and DFE fits the definition of what a "typical reasonable person
[would] have understood the scope" of his consent to a blood draw to include.
Hampton, 333 N.J. Super. at 29 (alteration in original) (internal quotations and
citation omitted). Thus, we find no error in the admission of defendant's blood
test results relative to DFE, and the judge correctly denied his motion to suppress
this evidence.
III.
Next, defendant argues that evidence of his earlier motor vehicle accident
and his frequent purchases of Dust-Off over the course of a twenty-five-month
period was erroneously admitted into evidence. Defendant argues that the
evidence was not relevant for any non-propensity purpose and was prejudicial
under Rule 404(b). We disagree.
Before trial, the judge ruled that the evidence pertaining to the 2012
accident and the fifteen Dust-Off purchases defendant made between July 2012
and August 2014 were admissible as both intrinsic to the charged conduct and
A-4034-17T4 18 as a prior bad act under Rule 404(b), finding the evidence was probative of
absence of mistake.
We review a trial court's ruling on the admissibility of evidence for an
abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v.
Demello, 191 N.J. 18, 31 (2007)). Our review is de novo, however, if the court
applied the wrong test or failed to perform the required analysis. State v.
Garrison, 228 N.J. 182, 194 (2017) (citing Rose, 206 N.J. at 158).
Relevant evidence is presumptively admissible under Rule 402, but may
be found inadmissible under Rule 403 "if its probative value is substantially
outweighed by the risk of . . . undue prejudice[.]" Moreover, Rule 404(b) states
that,
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[N.J.R.E. 404(b).]
"The threshold determination . . . is whether the evidence relates to 'other
crimes,' and thus is subject to . . . analysis under Rule 404(b), or whether it is
evidence intrinsic to the charged crime, and thus need only satisfy the evidence
A-4034-17T4 19 rules relating to relevancy, most importantly Rule 403." Rose, 206 N.J. at 179.
"[T]he notion of 'intrinsic evidence' lies in the cross hairs of the intersection of
Evidence Rules 401, 402, and 403, on the one hand, and Rule 404 (b) on the
other." Id. at 177. While evidence of "other crimes, wrongs, or acts," is
analyzed under, and subject to the strictures of Rule 404(b), "evidence that is
intrinsic to a charged crime need only satisfy the evidence rules relating to
relevancy, most importantly the Rule 403 balancing test." Id. at 177-78. To
determine if evidence "is intrinsic to the charged crime," the Court in Rose
adopted a test enunciated in United States v. Green, 617 F.3d 233 (3d Cir. 2010).
Rose, 206 N.J. at 180.
The Court held that "two narrow categories of evidence" of other bad acts
are intrinsic to the charged crime: (1) evidence that "'directly proves' the
charged" crime; and (2) evidence of bad "acts performed contemporaneously
with the charged crime" that "facilitate[d] the commission of the charged crime."
Ibid. (internal quotation marks omitted) (quoting Green, 617 F.3d at 248-49).
Any evidence of other bad acts not fitting within one of those two "tight
description[s] of intrinsic evidence" must be analyzed under Rule 404(b). Id. at
181.
A-4034-17T4 20 The judge found that the evidence regarding the July 2012 accident and
fifteen Dust-Off purchases made between July 2012 and August 2014 were
intrinsic because the evidence was "intertwined with the fabric of this case," and
omitting the same would "remov[e] . . . the proper context of the incident."
Moreover, the judge ruled the evidence made it "more probable that the
[d]efendant's conduct was reckless" and "more probable that the [d]efendant
consciously disregarded a known risk" by operating his truck under the influence
of DFE.
Pursuant to Rule 404(b), evidence of other crimes or bad acts is generally
not admissible, unless used for "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident when
such matters are relevant to a material issue in dispute." In Cofield, our Supreme
Court set forth a four-pronged test to govern the admission of such evidence:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
A-4034-17T4 21 [State v. Cofield, 127 N.J. 328, 338 (1992) (citation omitted); see also State v. Carlucci, 217 N.J. 129, 140- 41 (2014) (reaffirming the Cofield test).]
The Court also explained that the second Cofield prong is not one that can be
found in the language of Rule 404(b).
Here, the judge held that prong one was satisfied for similar reasons that
supported the finding that the evidence was intrinsic. The evidence was
probative of defendant's mental state of mind at the time of the offense, a mental
state consistent with mistake. Because defendant lost consciousness in 2012
while ostensibly under the influence of DFE, the judge found he was on notice
of the potential adverse consequences of inhaling that substance while driving.
And, defendant's failure to heed that warning tended to negate the possibility
that he became intoxicated on DFE by mistake or accident.
Relying on State v. Williams, 190 N.J. 114, 131-34 (2007), the judge
declined to consider the second Cofield prong, finding it was not "analogous to
the proposed uses of 404(b) evidence in Cofield itself." Defendant has not
challenged the judge's decision on prong two. Therefore, any challenge to the
findings regarding prong two is waived. See State v. Amboy Nat'l Bank, 447
N.J. Super. 142, 148 n.1 (App. Div. 2016).
A-4034-17T4 22 Under prong three of Cofield, the State bears the burden of proving the
prior crime, wrong, or bad act by "clear and convincing evidence." Aiello v.
Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960); accord State v.
Hernandez, 170 N.J. 106, 127 (2001). "The clear and convincing standard may
be satisfied by uncorroborated testimonial evidence." Hernandez, 170 N.J. at
127 (quoting In re Samay, 166 N.J. 25, 30 (2001)).
Here, in finding the State met its burden, the judge referenced defendant's
recorded statement to police that he had previously blacked out while driving in
2012, and the investigating officers' accounts of the accident. The judge also
relied upon records from Micro Center to establish that defendant bought Dust -
Off more than a dozen times in twenty-five months, including within an hour of
both motor vehicle collisions.
Defendant contends the State did not present clear and convincing
evidence that the prior accident was caused by his inhalation of Dust-Off.
Defendant bases this argument in part on the fact that no motor vehicle tickets
were issued following the 2012 accident and that the responding officer testified
that defendant had not exhibited signs of intoxication.
However, defendant himself admitted to having lost consciousness before
the earlier collision and it was reasonable to reject his explanation for that loss
A-4034-17T4 23 of consciousness as having been caused by the other driver's high-beam
headlights. Not only did the other driver deny this, but defendant had purchased
Dust-Off only eleven minutes before he crashed into a ramp and hit the other
vehicle head-on. Based on these facts and the expert testimony concerning the
effects of inhaling DFE, the court had ample record support to reach "a firm
belief or conviction," Aiello, 64 N.J. Super. at 162, that defendant inhaled Dust-
Off on July 24, 2012, which caused him to lose consciousness and crash. The
judge correctly determined that the third Cofield prong was met.
Under the fourth Cofield prong, "[t]he probative value of the evidence
must not be outweighed by its apparent prejudice." Cofield, 127 N.J. at 338.
"That prong requires an inquiry distinct from the familiar balancing required
under [Rule] 403: the trial court must determine only whether the probative
value of such evidence is outweighed by its potential for undue prejudice . . .
not whether it is substantially outweighed by that potential . . . ." State v. Green,
236 N.J. 71, 83-84 (2018) (internal citation omitted).
In Green, a vehicular homicide prosecution, the Court held that the
defendant's previous DWI 2 convictions were probative as to whether he "was
aware of, but consciously disregarded, the risks of driving while intoxicated, a
2 Driving while intoxicated. A-4034-17T4 24 mental state that is a material element of vehicular homicide." Id. at 85.
However, the probative value of the prior convictions was diminished by the
fact that they had occurred five and sixteen years before the offense for which
the defendant was charged, and the State possessed the less inflammatory proof
of defendant's blood-alcohol reading at the time of the charged conduct. Id. at
85-86.
Moreover, the Court held, it was reasonable for the motion judge to
conclude that the risk of prejudice was high because the prior convictions might
confuse or mislead the jury, "causing it to convict [the defendant] based solely
on his propensity to drive while intoxicated." Id. at 85. Therefore, the Green
Court concluded that under those circumstances, the balancing of "the probative
value against the prejudice of admitting [the evidence] . . . favor[ed] the
exclusion of the evidence." Id. at 86.
Here, in finding prong four was met, the judge appropriately relied on the
lack of alternative theories as to the cause of the subject accident and on the
limiting instructions, which alleviated the risk of undue prejudice.
Defendant argues that evidence of the 2012 accident and the Dust-Off
purchases were prejudicial for one of the same reasons as in Green—that there
was less prejudicial evidence available to prove his heightened awareness of the
A-4034-17T4 25 risks of inhaling an intoxicant, including the presence of DFE in defendant's
blood. In defendant's view, admitting the "prior bad acts" evidence "unfairly
paint[ed] [defendant] as the kind of person who got high and drove," which was
what Rule 404(b) was designed to prevent.
Green is distinguishable from this case in several respects. First, although
the defendant in Green was charged with vehicular homicide, he was not charged
with aggravated manslaughter, "which requires proof of a higher level of
recklessness than does vehicular homicide." Id. at 80. Therefore, defendant's
knowledge that a loss of consciousness could result from inhaling DFE from an
aerosol canister was relevant to determining whether his actions "manifest [ed]
extreme indifference to the value of human life." N.J.S.A. 2C:11-4(a)(1). Even
if the jury believed DFE inhalation was the cause of defendant's loss of
consciousness, absent evidence of the 2012 accident and the prior Dust-Off
purchases, it would have had to speculate as to whether he was aware of these
risks.
Second, in Green, the more recent of the two DWI convictions occurred
more than five years before the charged conduct and the most remote one was
sixteen years earlier. Id. at 78. By contrast in this matter, the prior collision
and Dust-Off purchases all occurred no more than twenty-five months before
A-4034-17T4 26 the charged conduct, making these "prior bad acts" less remote and more
probative than those in Green. See State v. Marrero, 148 N.J. 469, 491 (1997)
("The temporal remoteness of other-crime evidence affects both its probative
worth and prejudicial effect on a defendant.").
Finally, defendant, the only witness to both accidents, introduced the 2012
collision into the case himself when he told police in a recorded statement that
the "same [expletive] thing" had happened to him each time.
Because the judge's findings are supported by sufficient credible evidence
in the record, we conclude the judge's decision to admit evidence concerning
defendant's 2012 accident and Dust-Off purchases between 2012 and 2014 was
not a mistaken exercise of discretion.
Once evidence is found to be admissible, "the court must instruct the jury
on the limited use of the evidence." Cofield, 127 N.J. at 340-41. "[T]he court's
instruction 'should be formulated carefully to explain precisely the pe rmitted
and prohibited purposes of the evidence, with sufficient reference to the factual
context of the case to enable the jury to comprehend and appreciate the fine
distinction to which it is required to adhere.'" Id. at 341 (quoting State v.
Stevens, 115 N.J. 289, 304 (1989)).
A-4034-17T4 27 Here, the judge properly instructed the jury it could use the 2012 collision
and the Dust-Off purchases not to show "a disposition or tendency to do wrong,"
but for the non-propensity purpose of proving absence of mistake as to
defendant's loss of consciousness, and to show that he consciously disregarded
a known risk and manifested extreme indifference to the value of human life.
Viewed in context, the evidence was probative in explaining the subject
accident.
With regard to both accidents, defendant purchased a canister of Dust-Off
less than an hour before, and in his words, he blacked out and crashed his vehicle
each time. Based upon the expert testimony that DFE can cause loss of
consciousness if inhaled, the jury reasonably inferred that in both instances,
defendant blacked out while driving after purchasing and inhaling Dust -Off
from the intoxicating effects of DFE.
As to defendant's other Dust-Off purchases—the thirteen not associated
with a known motor vehicle accident—there was expert testimony about the
ways in which inhalants could be used to produce intoxicating effects. The jury
could have reasonably inferred from the number of purchases that defendant had
a habit of using inhalants for their euphoria-inducing and intoxicating effects.
A-4034-17T4 28 As to potential prejudice under Rule 403, the judge three times instructed
the jury not to "use this evidence to decide that the defendant has a tendency to
commit crimes or that he is a bad person" or that "he has a disposition or
tendency to do wrong." The jury was only to consider the purchase history as
probative of absence of mistake or to show defendant was aware of and
consciously disregarded the risks of driving while intoxicated. We agree with
the judge's analysis.
"Jurors are presumed to have followed the court's instructions in the
absence of evidence demonstrating otherwise." State v. Montgomery, 427 N.J.
Super. 403, 410 (App. Div. 2012). There is nothing in the record to suggest that
the jury did not understand the judge's instructions. Accordingly, we see no
abuse of discretion in the judge's decision to admit evidence of defendant's 2012
accident and Dust-Off purchases into evidence.
IV.
Defendant next contends that Pandina and Tramontin, who testified about
the effects of DFE on the human body, gave inadmissible expert testimony under
Rules 702 and 703. He further asserts that these experts provided inadmissible
net opinion testimony.
A witness may testify as an expert if "qualified . . . by knowledge, skill,
A-4034-17T4 29 experience, training, or education" to offer the opinion as long as the expert's
"scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue . . . ." N.J.R.E. 702
Under Rule 703, an expert opinion must be based on "facts or data."
N.J.R.E. 703. "The corollary of that rule is the net opinion rule, which forbids
the admission into evidence of an expert's conclusions that are not supported by
factual evidence or other data." State v. Townsend, 186 N.J. 473, 494 (2006).
However, the net opinion rule "does not require experts to organize or support
their opinions in a specific manner 'that opposing counsel deems preferable.'"
In re Civil Commitment of A.Y., 458 N.J. Super. 147, 169 (App. Div.) (quoting
Townsend, 221 N.J. at 54), cert. denied, 238 N.J. 436 (2019).
A. Tramontin's expert testimony
In a pretrial hearing, Tramontin, a forensic scientist and supervisor of the
toxicology unit at the Central Regional Laboratory of the OFS, was admitted,
over defendant's objection, as an expert in DFE and the laboratory procedures
used to detect DFE in the bloodstream.
At a later pretrial hearing before a different judge, defendant again
objected to Tramontin's proposed testimony, partially on the grounds that she
was unqualified to testify about the side effects of DFE. The judge overruled
A-4034-17T4 30 the objection and admitted Tramontin as an expert in the field of forensic
toxicology, partially based in part on the ruling by the motion judge.
To be admissible, expert testimony must satisfy three requirements. It
"must concern a subject matter that is beyond the ken of the average juror; . . .
the field testified to must be at a state of the art such that an expert's testimony
could be sufficiently reliable; and . . . the witness must have sufficient
expertise." State v. Stubblefield, 450 N.J. Super. 337, 343 (App. Div. 2017)
(quoting Agha v. Feiner, 198 N.J. 50, 62 (2009)). "Concerning expertise, an
expert witness must possess the minimal technical training and knowledge
essential to the expression of a meaningful and reliable opinion." State v. Frost,
242 N.J. Super. 601, 615 (App. Div. 1990).
A lack of formal clinical training in a given area will not necessarily
disqualify the expert from testifying if there is some other foundation for the
expert's opinion. State v. Jenewicz, 193 N.J. 440, 455-56 (2008) (holding it was
error to exclude drug treatment counselor's testimony regarding "behavioral and
mental irregularities of long-term cocaine abusers" despite counselor's lack of
formal licensing or clinical training).
Defendant asserts that Tramontin lacked expertise on which to base her
opinions concerning the effects of DFE on humans, because she had no relevant
A-4034-17T4 31 educational experience, clinical training, or certifications apart from her
bachelor's degree in chemistry. He contends that her work in analyzing blood
and urine samples qualified her to testify only about laboratory procedures for
such analyses and not about the side effects of specific drugs or chemicals. We
reject defendant's argument.
"The qualifications of an expert and the admissibility of opinion or similar
expert testimony are matters left to the discretion of the trial court." State v.
McGuire, 419 N.J. Super. 88, 123 (App. Div. 2011). Particularly regarding "an
individual's expertise to speak on a topic as an expert witness," our Supreme
Court has afforded "substantial deference to the trial court when it determines
whether to qualify a proposed expert." Jenewicz, 193 N.J. at 454-55. "[T]he
strength of an individual's qualifications may be undermined through cross -
examination," and should not be used "as a reason to exclude a party's choice of
expert witness to advance a claim or defense." Id. at 455. The court's decision
to qualify an expert "will only be reversed for 'manifest error and injustice.'"
Ibid. (quoting State v. Torres, 183 N.J. 554, 572 (2005)).
In addition to Tramontin's thirty years' experience analyzing blood and
urine "for impairing substances" capable of affecting someone's "mental
capacity," and her qualification as an expert in a previous case involving DFE,
A-4034-17T4 32 she also audited the State Police training for drug recognition experts (DRE), a
course specifically designed to teach "how to identify if someone is impaired
and what they're impaired by." Tramontin also testified she had reviewed
publications concerning DFE inhalation and was aware that its potential health
effects, included unconsciousness.
Given her extensive experience in the toxicology unit, her completion of
DRE training, and her review of literature about DFE, Tramontin "possess[ed]
the minimal technical training and knowledge essential to the expression of a
meaningful and reliable opinion" regarding the effects of that substance on the
human body. Frost, 242 N.J. Super. at 615. Moreover, to the extent she lacked
formal clinical training, that did not disqualify her from testifying as an expert,
Jenewicz, 193 N.J. at 455-56, but went only to the weight of her testimony,
which the defendant was able to and did challenge on cross-examination.
The jury was made aware that Tramontin had not taken formal classes on
the effects of DFE and was free to consider that fact during its deliberations.
The judge gave the model instruction on expert witnesses, which provides that
the jury was not bound to accept expert opinions and was free to determine from
the evidence whether the facts forming the foundation for the opinions were true.
We conclude that the judge did not commit a manifest error or injustice by
A-4034-17T4 33 permitting Tramontin to testify about the effects of DFE in the human body.
B. Pandina's expert testimony
Defendant also contends that Pandina lacked the expertise to testify about
the effects of DFE. Pandina's area of expertise, defendant argues, was on the
effect of alcohol and drugs on human behavior, and his opinion as to the ef fects
of inhaling DFE was an area beyond his expertise and was not grounded in
sufficient facts or data to support his opinion. Again, we disagree.
Pandina testified about his extensive expertise in the areas of
psychopharmacology and substance abuse. He was a professor at Rutgers
University for forty-four years in the graduate department for neurosciences and
applied professional psychology. He also served as an adjunct professor in the
department of psychiatry at Robert Wood Johnson Medical School.
In his qualifying testimony, Pandina testified he was familiar with a dozen
different types of inhalants, including DFE, which are used to produce euphoric
effects similar to anesthesia. After the judge qualified Pandina as an expert in
the field of psychopharmacology, he testified before the jury that DFE is a highly
toxic substance for which users are unlikely to develop a tolerance.
After reviewing the police reports and medical records in this case,
Pandina opined that defendant ingested DFE a few minutes before the subject
A-4034-17T4 34 accident. "According to Pandina, when defendant drove through the farmer's
market, he was under the influence of DFE and 'operating on automatic pilot.'"
Viewing Pandina's testimony in the context of the facts of this case, we see no
reversible error or abuse of discretion by the judge.
Lastly, defendant challenges his sentence. He argues that a sentence of
twenty-years imprisonment, with an eighty-five percent period of parole
ineligibility, is manifestly excessive and unreasonable.
"Appellate review of sentencing decisions is relatively narrow and is
governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,
297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). On appeal, we
may "not substitute [our] judgment for that of the sentencing court." State v.
Fuentes, 217 N.J. 57, 70 (2014) (citing State v. O'Donnell, 117 N.J. 210, 215
(1989)). We
must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
A-4034-17T4 35 Here, the judge found aggravating factor two, N.J.S.A. 2C:44-1(a)(2) (the
gravity and seriousness of harm inflicted on the victim), aggravating factor
three, N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will commit another
offense), and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need for
deterring the defendant and others from violating the law). The judge only found
one mitigating factor, seven, N.J.S.A. 2C:44-1(b)(7) (defendant had no prior
criminal history).
Defendant does not argue his sentence shocked the judicial conscience,
but claims that the judge erred in three respects: (1) aggravating factor three was
improperly based on punishing defendant for his prior bad acts and his addiction
rather than for the offense for which he was sentenced; (2) aggravating factor
nine was unsupported by the record; and (3) mitigating factors seven, eight, nine,
and eleven were not given the appropriate weight they were due. Defendant also
argues that the court ordered restitution without first determining his ability to
pay.
We disagree. The record shows defendant was convicted in 2002 of
driving while intoxicated. The presentence investigation report also reflected
that apart from his misuse of inhalants, defendant had a history of cocaine,
A-4034-17T4 36 marijuana, and alcohol use. Therefore, aggravating factor three was support ed
by "competent, reasonably credible evidence." Roth, 95 N.J. at 363.
In finding aggravating factor nine applied, the judge determined that
defendant had not "learned his lesson" from his prior DWI conviction and that
"[t]his sentence needs to deter him when he is released from prison."
As to general deterrence, the judge noted that a lengthy sentence would
be appropriate to deter others from driving under the influence. The judge
added, "[t]he word to the public is you want to go out and you want to indulg e
in anything to get high—just do it home . . . Because if you do it in public and
something like this happens, you better be prepared to face some real serious
consequences."
Here, the judge found only one mitigating factor, seven, which pertains to
defendant's lack of criminal history. N.J.S.A. 2C:44-1(b)(8) and (9). The judge
declined to find factors eight and nine—that "defendant's conduct was the result
of circumstances unlikely to recur" and that "[t]he character and attitude of the
defendant indicate that he is unlikely to commit another offense," respectively.
N.J.S.A. 2C:44-1(b)(8-9). In rejecting these factors, the judge rightfully noted
there was no evidence defendant was in a serious rehabilitative program. The
judge also rejected mitigating factor eleven—that "imprisonment of the
A-4034-17T4 37 defendant would entail excessive hardship"—finding that defendant suffered no
hardship while incarcerated in jail because imprisonment was beneficial to his
health. N.J.S.A. 2C:44-1(b)(11).
Defendant first argues that mitigating factor seven warranted
"substantially more weight because this was [defendant's] first indictable arrest
and conviction." He contends that the judge erred by finding both aggravating
factor three and mitigating factor seven without offering "a reasoned explanation
for its conclusion that this first-time offender presented a risk to commit another
offense." State v. Case, 220 N.J. 49, 67 (2014). We disagree.
The judge gave ample reasons that supported aggravating factor three and
diminished the weight of mitigating factor seven. The relative weight giv en to
each of those factors was within the trial court's discretion. See State v. Dalziel,
182 N.J. 494, 504-05 (2005) (noting that mitigating factors supported by the
record "may be accorded such weight as the judge determines is appropriate").
Next, with respect to mitigating factor eight—that conduct was the result
of circumstances unlikely to recur—defendant argues that because he was fifty-
two years old at the time of sentencing and the court had issued a twenty-year
license suspension, it was "extremely unlikely that [he] will ever drive again
once he is released from prison." Defendant has twice been convicted of DWI,
A-4034-17T4 38 apart from a third time, in Fair Lawn in 2012, wherein he also appears to have
driven while intoxicated. Because the 2012 accident did not deter defendant,
the judge was justified in declining to find the circumstances here were "unlikely
to recur." N.J.S.A. 2C:44-1(b)(8).
Concerning mitigating factor nine, defendant's character and attitude,
N.J.S.A. 2C:44-1(b)(9), defendant contends he was regarded as "a loving family
member who cared for both of his parents in their old age," that he had "helped
his friends, treated his employees well," and that he was "working to improve
himself while he was in jail." The judge expressly considered these facts, but
found that defendant's decision to inhale DFE while driving on August 10, 2014,
"just wipes out everything he has done professionally and personally."
Moreover, the judge noted that the homicide occurred within three blocks
of defendant's home, commenting "[i]t would've only taken, about, five more
minutes" to return home before becoming intoxicated and that his failure to wait
was "[t]he height of selfishness". The judge's weighing of mitigating factor nine
was well within his "wide discretion." State v. Clarke, 203 N.J. 166, 177 (2010).
With respect to mitigating factor eleven, whether imprisonment "would
entail excessive hardship" to defendant, N.J.S.A. 2C:44-1(b)(11), defendant
A-4034-17T4 39 noted that he has diabetes and "significant hip problems," and argued these
ailments will pose a significant hardship as he advances in age.
In State v. Wilson, 421 N.J. Super. 301, 311-12 (App. Div. 2011), we
rejected a similar argument from a defendant suffering from multiple sclerosis,
holding that "[a]lthough we sympathize with defendant's medical condition, the
record is devoid of any evidence that he will not obtain satisfactory medical
treatment while incarcerated." Here, similarly, no evidence showed that
defendant will be unable to obtain treatment for his medical conditions while
incarcerated. See also State v. M.A., 402 N.J. Super. 353, 369 (App. Div. 2008)
(affirming trial court's rejection of mitigating factor eleven for defendant
suffering from "advanced AIDS, . . . diabetes and artery disease"). Accordingly,
as with the other mitigating factors, number eleven had no credible support in
the record. See Dalziel, 182 N.J. at 504-05.
Furthermore, the judge provided adequate reasons for imposing the
twenty-year prison term for D.W.'s homicide. The sentence is reasonable and
does not shock the judicial conscience. See Fuentes, 217 N.J. at 70 (quoting
Roth, 95 N.J. at 364-65).
We therefore conclude that the judge followed the sentencing guidelines
and there is sufficient credible evidence in the record to support the judge's
A-4034-17T4 40 findings on the aggravating and mitigating factors. We reject defendant's
contention that the judge failed to adequately weigh the aggravating and
mitigating factors.
For the first time on appeal, defendant argues the judge erred by ordering
$12,750 in restitution to be paid to the victim's family without first determining
his ability to pay. Therefore, we review the lack of an ability-to-pay hearing for
plain error under Rule 2:10-2 and will not set the decision aside unless it was
"clearly capable of producing an unjust result . . . ."
Pursuant to statute:
The court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment . . . if:
(1) The victim, or in the case of a homicide, the nearest relative of the victim, suffered a loss; and
(2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution.
[N.J.S.A. 2C:44-2(b).]
N.J.S.A. 2C:44-2 "grants to the court considerable discretion in evaluating
a defendant's ability to pay" restitution. State v. Newman, 132 N.J. 159, 169
(1993). "The evaluation is necessarily imprecise because it contemplates an
examination of the future ability to pay if the defendant currently does not have
A-4034-17T4 41 financial resources." Id. at 169. "[H]owever, that discretion is not unfettered."
State v. Scribner, 298 N.J. Super. 366, 371 (App. Div. 1997).
As a general rule, "a restitution order will not survive appellate review if
the sentencing court has not specified the restitution amount and determined
whether the defendant will be capable of paying the amount required." RSI
Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 478 (2018). In State v.
Orji, 277 N.J. Super. 582, 589 (App. Div. 1994), however, where defendant's
counsel conceded that the client had the funds to pay restitution and did not
object to the amount of the award, we declined to vacate the award on appeal,
notwithstanding the lack of an ability-to-pay hearing. Because the pre-sentence
investigation report reflected that the defendant had a bachelor's degree and was
gainfully employed, we held that "the judge properly could have inferred that
defendant had the ability to pay the restitution ordered;" Ibid. but see State v.
McLaughlin, 310 N.J. Super. 242, 264-65 (App. Div. 1998) (distinguishing Orji
and requiring ability-to-pay hearing on $271,000 restitution award due to silence
of record on defendant's financial resources and likely future earnings).
Here, the pre-sentence report similarly established that defendant earned
a bachelor's degree and, prior to incarceration, had been employed for fourteen
years as a landscape architect. Defendant told probation specifically that he
A-4034-17T4 42 would "pay all [c]ourt imposed fines." In his sentencing memorandum,
defendant expanded further on his work history, noting that he started his own
landscaping business, had operated it for nearly a decade, and grew his business
by incorporating computer renderings into his designs. In addition, defendant
used his earnings to financially support his mother when she was ill up until her
death in 2013.
While the judge could have engaged in a more fulsome inquiry of
defendant's future earnings under N.J.S.A. 2C:44-2(c)(2), we conclude there was
no plain error, because the judge "could have inferred that defendant had the
ability to pay the restitution ordered," given his employment history, his
statement to probation that he was willing to pay the fines, and his submission
to the judge's discretion on the subject. Orji, 277 N.J. Super. at 589.
Affirmed.
A-4034-17T4 43