SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1901-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN C. VANNESS a/k/a

JOHN C. VAN NESS,

Defendant-Appellant.

Submitted February 24, 2021 – Decided April 26, 2021

Before Judges Fuentes, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 13-01-

0208.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Candace Caruthers, Assistant Deputy Public 

Defender, of counsel and on the briefs).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Mary R. Juliano, 

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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A-1901-18

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

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

in Ocean Township. Following appropriate mergers, defendant was sentenced 

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

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

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

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

resentencing.

I.

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

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

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

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

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

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

(counts two, six, and ten).

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

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

twelve). The jury found defendant guilty on the six remaining counts of theft 
3

A-1901-18

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

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

five years.

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

new trial. State v. Van Ness, 450 N.J. Super. 470, 499 (App. Div. 2017). This 

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

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

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

trial. Id. at 474. 

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

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

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

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

by defendant on appeal.

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

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

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

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

a Banco Popular account held by defendant and his business, V&V Machines. 
4

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

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

following facts at trial:

John Van Ness knew prior to November of 2012 that 

his business checking account with Banco Popular 

under the title V&V Machines bearing account number 

xxxxxxxxx1 was closed.

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

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

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

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

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

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

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

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

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

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

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

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

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

check from the same business account, backdated to October 12, 2012, and 
5

A-1901-18

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

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

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

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

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

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

was arrested in the parking lot without incident.

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

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

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

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

Harris acknowledged that defendant presented his driver's license with 

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

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

were "no good."

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

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

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

testimony was not admitted in evidence at defendant's present trial, although 
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some of her remarks were admitted through Harris's testimony. 1 As a few 

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

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

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

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

failed to cooperate with the internal investigation conducted by Sears. 

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

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

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

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

any witnesses.

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

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

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

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

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

1 Prior to trial, the judge granted defendant's unopposed motion to preclude 

admission of the testimony of any State witnesses who testified at the first trial 

but were unavailable for the present trial.
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defendant had last made an "ATM balance inquiry" on March 3, 2009, when the 

account had a negative balance of $6,544.23. 

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

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

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

POINT I

THE ADMISSION OF HIGHLY PREJUDICIAL AND 

IRRELEVANT EVIDENCE OF DEFENDANT'S 

BANK RECORDS DENIED DEFENDANT A FAIR 

TRIAL BY SUGGESTING PROPENSITY TO STEAL 

AND AN INABILITY TO REPAY HIS DEBTS. 

[(Partially raised below)]

A. The Trial Court Erred by Analyzing the 

Evidence under N.J.R.E. 403.

B. A Proper N.J.R.E. 404(b) Analysis 

Shows that the Bank Records Evidence 

Was Inadmissible.

[(Not raised below)]

i. The Bank Records Evidence 

Fails the First Cofield[2] Prong 

Because It Is Irrelevant and 

Does Not Relate to Any 

Genuinely Disputed Issue.

ii. The Evidence Fails the 

Fourth Cofield Prong Because 

2 State v. Cofield, 127 N.J. 328, 338 (1992). 
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It Had No Probative Value but 

Was Highly Prejudicial.

iii. The Absence of a 

[N.J.R.E.] 404([b]) Charge 

that Clearly Explained the 

Permissible Use of the Prior 

Bad Act Evidence 

Necessitates Reversal.

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A 

FAIR TRIAL AND DUE PROCESS OF LAW DUE TO 

THE ERRONEOUS ADMISSION OF HEARSAY 

EVIDENCE THAT HE WAS A NOTORIOUS, 

VIOLENT CON[]MAN. 

(Not raised below) 

POINT III

DEFENDANT'S SENTENCE IS EXCESSIVE 

BECAUSE THE TRIAL COURT ERRED BY 

IMPOSING A SENTENCE LONGER THAN WHICH 

WAS GIVEN AT HIS FIRST SENTENCING, 

FAILING TO FIND APPLICABLE MITIGATING 

FACTORS, FAILING TO CONDUCT AN ABILITY 

TO PAY HEARING, AND MISCALCULATING 

[DEFENDANT]'S JAIL CREDITS. 

[(Partially raised below)]

A. Defendant's Sentence Was Illegally 

Increased. 

[(Not raised below)]

B. The Court Failed to Find Applicable 

Mitigating Factors. 
9

A-1901-18

C. The Court Erred by Failing to 

Determine Defendant’s Ability to Pay 

Restitution. 

[(Not raised below)]

D. Defendant's [JOC] Must Be Amended 

to Correct a Miscalculation of His Jail 

Credits. 

[(Not raised below)] 

II.

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

challenge his convictions. 

A.

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

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

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

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

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

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

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

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

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

by the parties. Because defendant was previously convicted of passing bad 
10 A-1901-18

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

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

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

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

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

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

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

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

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

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

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

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

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

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

404(b). 

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

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

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

prejudicial." 
11 A-1901-18

Contending the stipulation was "very, very vague," the State argued it was 

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

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

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

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

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

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

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

severe negative territory of over $6000." 

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

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

he presented the checks at Sears. The judge elaborated:

Let me start with the premise that all evidence is 

prejudicial to some extent. The question is the 

prejudicial nature being outweighed by its [probative 

value] or vice versa.

In this case, I think it does go exactly to what [the 

prosecutor] was saying, whether it's the knowledge that 

[defendant] ha[d] at the time that he goes [to pay for the 

items] with the checks.

Yes, the stipulation tells part of the story, that is 

that he knew the account was closed as of the time of 

this offense. The question is beyond that, which is, the 

longer he knows does go to, I think, the second charge, 
12 A-1901-18

not necessarily the bad check charge but the theft by 

deception charge, because it's the knowledge there of 

what he's doing and trying to get the goods without 

paying for them.

Now, he does have a defense to that, at least 

what's been presented, that he [ultimately] went back 

with the intent to pay. Okay. That's a credibility issue, 

among other things, because of what happened.

He was arrested before he ever had the chance, 

but . . . that's a totally different issue as to whether . . . 

and what he knew about the bank account being closed, 

and at what level, and at what point in time, and how 

far in time prior to these incidences in November of 

2012.

Now, do we need to go into the fact that his 

account had $100,000 on one day and, you know, 

$50,000 on another day and . . . it's a business account. 

It's going to jump all over the place. That's just the 

nature of business.

I don't think that's really relevant, but the closing 

dates, the information from the bank for that, I think 

that's absolutely relevant.

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

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

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

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

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

should have sua sponte issued a limiting instruction, cautioning the jury "not 
13 A-1901-18

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

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

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

Defendant further contends that because he stipulated that the account was 

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

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

sound discretion of the trial court," State v. Willis, 225 N.J. 85, 96 (2016), and 

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

State v. Green, 236 N.J. 71, 81 (2018). "However, that deferential approach is 

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

evidence at trial." Ibid. Nonetheless, "if the party appealing did not make its 

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

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

unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2). 

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

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

at 180. Additionally, "uncharged acts performed contemporaneously with the 

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

charged crime." Ibid. (internal quotation marks omitted). Evidence that is 
14 A-1901-18

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

subject to N.J.R.E. 404(b). Ibid.; State v. Sheppard, 437 N.J. Super. 171, 193 

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

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

substantially outweighed by the risk of . . . undue prejudice." Rose, 206 N.J. at 

161.

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

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

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

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

comments.

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

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

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

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

in summation, as follows: 

[Defendant] conducted three transactions totaling 

nearly $3000. During each one of those transactions, 

he was checked out by cashier Shequelle Harris. 

During each of those transactions, he passed checks to 

Shequelle Harris. 
15 A-1901-18

Those checks were drawn on a Banco Popular 

account that was closed over three years before he set

foot in that store. That account, at the time it was 

closed, had a negative balance of $7,559.[2]3. That 

account was . . . defendant's account and . . . defendant 

knew at the time he passed the checks at Sears that his 

account was closed.

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

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

pertinent part: 

In order to obtain a conviction [for bad checks], 

the State must prove each of the following elements 

beyond a reasonable doubt: [(1)] that the defendant 

knowingly issued or passed a check for the payment of 

money, and (2) that the defendant knew at the time he 

issued or passed the check that it would not be honored 

by the drawee.

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

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

evidence was not subject to N.J.R.E. 404(b). Rose, 206 N.J. at 180. The State 

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

concluded, the probative value of the records substantially outweighed their 

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

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

404(b).
16 A-1901-18

Moreover, we are not persuaded by defendant's repackaged contention 

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

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

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

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

an offense charged." State v. Wesner, 372 N.J. Super. 489, 491 (App. Div. 

2004). 

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

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

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

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

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

evidence.

B.

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

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

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

"had done this before." Defendant argues those statements were inadmissible as 
17 A-1901-18

hearsay statements under N.J.R.E. 801 and improperly introduced evidence of 

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

Initially, we recognize defendant elicited the challenged remarks on 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

v. Nelson, 173 N.J. 417, 471 (2002) (recognizing it is "fair to infer from the 
18 A-1901-18

failure to object below that in the context of the trial the error was actually of 

no moment") (quoting State v. Macon, 57 N.J. 325, 333 (1971)).

III.

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

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

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

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

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

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

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

deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014); see also State v. 

Trindad, 241 N.J. 425, 453 (2020). We do not "substitute [our] judgment" for 

that of the sentencing court. State v. Case, 220 N.J. 49, 65 (2014). That 

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

basic precepts that channel sentencing discretion." Ibid. Ordinarily, we will not 

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

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

State v. O'Donnell, 117 N.J. 210, 215-16 (1989). 
19 A-1901-18

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

prison term of five years. Van Ness, 450 N.J. Super. at 491. After his second 

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

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

the judge found three aggravating factors "substantially outweighed" one 

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

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

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

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

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

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

offense. 

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

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

first trial. Defendant's argument is misplaced.

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

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

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

the new sentence." State v. Heisler, 192 N.J. Super. 586, 592-93 (App. Div. 
20 A-1901-18

1984); see also State v. Pindale, 279 N.J. Super. 123, 128-30 (App. Div. 1995) 

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

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

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

To hold otherwise would effectively penalize a defendant for exercising his 

constitutional right to challenge his sentence. Heisler, 192 N.J. Super. at 593.

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

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

based upon objective information concerning identifiable conduct on the part of 

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

Pindale, 279 N.J. Super. at 129 (quoting North Carolina v. Pearce, 395 U.S. 711, 

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

authority must affirmatively identify the relevant conduct or events that 

occurred after the original sentencing proceeding in order to overcome any 

presumption of vindictiveness." State v. Rodriguez, 97 N.J. 263, 276 (1984). 

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

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

vindictiveness is virtually eliminated. See Texas v. McCullough, 475 U.S. 134, 

139 (1986) ("[Unlike] the judge who has been reversed, the trial judge here had 
21 A-1901-18

no motivation to engage in self-vindication.") (internal quotation marks 

omitted).

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

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

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

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

was indictable. On resentencing, the court must consider defendant's "postoffense conduct, rehabilitative or otherwise," in its sentencing decision. State 

v. Jaffe, 220 N.J. 114, 124 (2014). The judge's decision here was supported by 

defendant's post-offense conduct.

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

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

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

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

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

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

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

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

factor two. Defendant also contends he stole from Sears because he was 
22 A-1901-18

"desperate and looking for charity and compassion" in the aftermath of 

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

four. 

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

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

case." Case, 220 N.J. at 64. The court must then "determine which factors are 

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

and explain how it arrives at the appropriate sentence." O'Donnell, 117 N.J. at 

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

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

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

evidence in the record." Ibid. "Although there is more discretion involved in 

identifying mitigating factors than in addressing aggravating factors, those 

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

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

record." State v. Blackmon, 202 N.J. 283, 297 (2010); see also Case, 220 N.J. 

at 64. 

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

defendant will commit another offense), six (defendant's prior record), and nine 
23 A-1901-18

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

addressed the mitigating factors:

Originally when I looked at this, I did not find 

that there were mitigating factors; however, [defense 

counsel] has convinced me today that at least mitigating 

factor one applies. [D]efendant's conduct neither 

caused nor threatened serious harm. The total amount 

of the theft in this instance was . . . around $3000.

. . . . 

It was not serious harm to a major corporation like 

Sears. On the other hand, pretty soon, in the words of 

Everett Dirksen, a dollar here, dollar there, pretty soon 

you're talking serious money. And if every Sears store 

had these types of thefts going on, they'd be in serious 

trouble.

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

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

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

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

judge's ultimate findings or resultant sentence. 

3 At sentencing, defendant urged mitigating factors five (whether the victim's 

conduct induced or facilitated the crime), N.J.S.A. 2C:44-1(b)(5), and eight 

(defendant's conduct was the result of circumstances unlikely to recur), N.J.S.A. 

2C:44-1(b)(8). On appeal, defendant does not assert the judge failed to find 

those factors. An issue not briefed is deemed waived. See Gormley v. WoodEl, 218 N.J. 72, 95 n.8 (2014); see also Pressler & Verniero, Current N.J. Court 

Rules, cmt. 5 on R. 2:6-2 (2021).
24 A-1901-18

We also part company with the trial judge's restitution award in the 

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

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

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

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

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

his initial convictions. 

Nonetheless, before a court imposes restitution, it must find "[t]he 

defendant is able to pay or, given a fair opportunity, will be able to pay 

restitution." N.J.S.A. 2C:44-2(b), State v. Ferguson, 273 N.J. Super. 486, 499 

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

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

defendant's ability to pay. State v. McLaughlin, 310 N.J. Super. 242, 263-65 

(App. Div. 1998).

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

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

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

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

and get legitimate employment and pay this money back." At the time of 
25 A-1901-18

resentencing, however, defendant was fifty-seven years old and incarcerated. 

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

resentencing. Accord Jaffe, 220 N.J. at 124. 

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

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

Pessolano, 343 N.J. Super. 464, 479 (App. Div. 2001) (remanding for 

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

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

ability to pay"). 

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

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

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

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

presentence report indicates he was incarcerated during that timeframe as a 

fugitive from Pennsylvania for fraud offenses committed in that State. 

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

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

on remand, the judge shall determine whether defendant is entitled to jail credits 
26 A-1901-18

for the period spanning June 7, 2013 through June 25, 2013, and file an amended 

JOC as necessary.

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