SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5600-17T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY T. ISAZA,

Defendant-Appellant.

______________________________

Argued January 9, 2019 – Decided 

Before Judges Ostrer and Currier.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Accusation No. 17-08-0812.

Ruth E. Hunter, Designated Counsel, argued the cause 

for appellant (Joseph E. Krakora, Public Defender, 

attorney).

Alanna M. Jereb, Assistant Prosecutor argued the cause 

for respondent (Esther Suarez, Hudson County 

Prosecutor, attorney).

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NOT FOR PUBLICATION WITHOUT THE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.

January 25, 2019
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In this SOA appeal, see R. 2:9-11, defendant contends: the court was not 

authorized to increase the term of probation it previously imposed orally; 

defendant was denied an appropriate restitution hearing at which to set the 

amount of the victim's loss; and the court erred in finding that defendant was 

able to pay the restitutionary amount of $15,180. We agree, and therefore 

reverse and remand.

I.

Defendant pleaded guilty to a single-count accusation charging thirddegree aggravated assault. N.J.S.A. 2C:12-1(b)(7). The August 30, 2017, plea 

agreement did not specify a sentence the prosecutor would recommend. Instead, 

it provided, "Free to speak. Defendant to apply for PTI [pretrial intervention]. 

No contact with [the victim]. Restitution, if any, to be determined at 

sentencing." At his plea hearing, the court noted that defendant might not gain 

admission to pretrial intervention. However, if defendant did not, the judge 

stated, "[I]t's most likely that [he] would get probation."

Defendant was not admitted to PTI. At defendant's subsequent sentencing 

hearing on February 2, 2018, the court found, at the State's suggestion, 

aggravating factors three – stating defendant posed a "minor risk" of reoffending 

– and nine – finding a general need to deter defendant. See N.J.S.A. 2C:44-
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1(a)(3), (9). The judge inquired about aggravating factor two (gravity and 

seriousness of harm and victim's vulnerability), N.J.S.A. 2C:44-1(a)(2). Noting 

that the victim suffered a broken jaw, the judge asked if "the victim [was] on the 

ground when the strike took place." Assured by the prosecutor that the issue 

was disputed, the court expressly declined to find factor two. 1

As for mitigating factors, the court found factor seven (no prior 

delinquency or criminal activity, or law-abiding life for a substantial period), 

N.J.S.A. 2C:44-1(b)(7), which the court characterized as "mild," because 

defendant had prior contacts with the juvenile justice system in 2008 and with 

the municipal court in 2015 and 2017. The court also found mitigating factor 

ten (amenability to probationary treatment). N.J.S.A. 2C:44-1(b)(10).

Finding the aggravating and mitigating factors in equipoise, the court 

imposed a two-year term of probation and barred contact with the victim.

The court then turned to the issue of restitution. The prosecutor stated the 

victim had medical bills of $15,180, of which $10,000 remained after Charity 

Care or other sources. The defense attorney declined to stipulate to that amount 

 

1

 The record does not reflect the basis of the prosecutor's response, which was 

at odds with a signed statement by defendant admitting, "I hit him once, after he 

was on the floor."
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and insisted upon a hearing, after questioning whether the State double-counted 

the victim's expenses. The court agreed to schedule a restitution hearing.

Over the next four months, the court reconvened three times. At the May 

4, 2018, hearing, the court advised the State that the victim needed to appear to 

testify as to the expenses he incurred.

At the June 8, 2018, hearing, the prosecutor assured the judge that the 

Rules of Evidence did not apply. The court permitted the State to introduce into 

evidence, without a live witness to lay a foundation, various medical and 

hospital bills. The court admitted an April 5, 2018, affidavit from the victim, 

asserting he incurred the bills to treat his assault-related injuries and requesting 

$15,180 in restitution. He denied receipt of Charity Care or any other 

assistance.2 The prosecutor sought court approval of this amount.

Defense counsel still insisted upon the victim's appearance. The court 

ruled that the victim must appear and be subject to cross-examination, or the 

State must provide a "very, very detailed" certification as to what the victim 

incurred, the amount attributable to defendant, and whether the victim had 

insurance or attempted to mitigate his damages.

 

2

 In a separate, unsworn letter dated May 22, 2018, the victim contended he 

owed $20,000 in medical bills. In his April 28, 2018, "victim impact 

information" form, he requested $25,000 in restitution.
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Also at the June 8 hearing, defense counsel asked the court to reduce the 

probationary term to one year. The prosecutor did not specifically respond to 

the request, but asked the court to find aggravating factor two (contrary to his 

previously stated position), as well as factors three and nine, and "sentence the 

defendant to a term of probation." The court did not rule on either request.

At the next hearing two weeks later, defense counsel asked the court to 

dispense with any restitution because the victim failed to appear. The victim 

also did not provide the detailed certification that the court had requested. 

Counsel again asked the court to impose a one-year term of probation because 

"effectively he's been on probation since August, you know, for ten months 

already, because he's been coming to Court at least once a month and staying 

out of trouble just like he would have to if he was on probation."

Apparently disregarding its oral sentencing from February 2018, the court 

proceeded to sentence defendant anew to a five-year term of probation instead 

of a two-year term, after making new findings of aggravating and mitigating 

factors. The court did not expressly acknowledge that it was vacating its original 

sentence and reasoning, nor did it justify its decision to reconsider. This time, 

the court found aggravating factor two, based solely on the fact that the victim 

suffered a broken jaw. The court again found factor three, although it found 
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"very little risk" of reoffending, and factor nine, after expressly rejecting factor 

six (extent of prior criminal record).

As for mitigating factors, the court added factor six, based on defendant's 

restitution obligation, subtracted mitigating factor seven, but again found factor 

ten. This time, the court concluded that the mitigating factors outweighed the 

aggravating factors (in contrast to the February finding that the factors were in 

equipoise). Nonetheless, the court increased the term of probation to five years, 

stating that if defendant performed well on probation, he could apply for a 

reduction. "If you pay back the victim, if you're employed, if you stay out of 

trouble, I'll consider it. . . . I think one year is a little bit light. Five years is 

certainly on the highest end, but I'm going to leave that open to terminate early 

if you do well."

The court then proceeded to address restitution, over the defense's 

objection, despite the victim's absence. The court found the victim had 

established that he incurred $15,180 in medical and hospital costs, but it rejected 

the victim's request for substantially more.

As for defendant's ability to pay, the court acknowledged that defendant 

was physically unable to work because he was recently stabbed in the arm. 

Defendant was then twenty-one years old, had a high school education, and in 
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the past had worked only intermittently through a staffing agency earning $10 

hourly. Although the prosecutor suggested that defendant pay $100 to $150 a 

month, the court ordered defendant to pay the full financial loss of $15,180 over 

a five-year period – equating to $253 a month.

II.

First, we address the increase in the probationary term. We recognize that 

when the court increased the term, the judgment of conviction was not yet 

entered and, apparently, defendant had not formally begun reporting to 

probation to begin service of the sentence (although the court acknowledged his 

timely reporting to court resembled such reporting). See State v. Matlack, 49 

N.J. 491, 501 (1967) (noting that "[u]nder the common law a judge could not 

increase or decrease a sentence once it had gone into operation"); State v. Pratts, 

145 N.J. Super. 79, 93-94 (App. Div. 1975) (holding that the court did not have 

the power to increase a sentence after entry of the judgment of conviction), aff'd 

o.b., 71 N.J. 399 (1976).

Notably, the panel in Pratts expressly declined to "decide whether a judge 

may increase an announced sentence before he signs the judgment of 
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conviction." Id. at 93.3 In State v. Moore, 178 N.J. Super. 417, 428 (App. Div. 

1981), the trial court clarified a sentence before entry of the judgment of 

conviction. The court had imposed a life sentence for murder without 

designating it as concurrent or consecutive to an existing sentence. Id. at 421. 

Noticing its omission the same day, the court alerted the defendant that it would 

reserve decision on the issue, and, ultimately, declared the new sentence would 

be consecutive. Id. at 426. We held that even if the consecutive sentence were 

deemed an increase in sentence – a premise we rejected because there was no 

presumption of concurrent sentences under the circumstances – the increase was 

permissible, because no judgment of conviction had been entered nor had the 

sentence gone into operation. Id. at 428.

However, Moore does not resolve the general question preserved in Pratts. 

First, the panel found that the trial court had not, in fact, increased a sentence. 

Second, Moore involved a point of ambiguity in the oral sentence, which the 

 

3

 We understand the question to pertain to imposition of a legal sentence, since 

a court may correct an illegal sentence at any time before the sentence is 

completed. State v. Shubert, 212 N.J. 295. 309-13 (2012). Courts in some other 

states have held that a legal oral sentence may not be increased, even before 

commencement of the sentence. See Lee R. Russ, Annotation, Power of State 

Court, During Same Term, to Increase Severity of Lawful Sentence – Modern 

Status, 26 A.L.R. 4th 905 § 8 (1983 & Cumulative Supp. 2019) (reviewing 

decisions).
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court promptly recognized the same day it imposed the oral sentence. By 

contrast, in this case, there was no inherent ambiguity in the court's oral sentence 

of two years of probation, and the court did not promptly reserve decision. 

Instead, it sua sponte increased the oral sentence four months after imposing it. 

Furthermore, our Rules of Court "modif[y] the common law by allowing a trial 

judge to reduce or change a sentence within time limitations, but do[] not 

empower him [or her] to increase sentences." Matlack, 49 N.J. at 501; see R.

3:21-10 (outlining procedural and time restraints for modifying a sentence); see 

also Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 3:21-10 (2018)

(stating that "since the purpose of the rule is leniency, a sentence may be 

decreased pursuant thereto, but cannot be increased unless the original sentence 

is the result of a mistake of a clerical nature").

However, we need not resolve whether a court may ever increase an oral 

sentence before it enters a judgment of conviction or the defendant commences 

service. Even if a court is empowered to do so, it must notify the defendant that 

it intends to reconsider its sentence, and it must provide compelling reasons to 

do so. Cf. R. 3:21-10(c) (requiring notice of reduction or change of sentence, 

and entry of reasons on the record). The court failed in that respect. We 

recognize that both the prosecutor and defense counsel addressed the sentence 
10 A-5600-17T5

at both June hearings. However, defense counsel sought a reduction in the initial 

probationary term and the prosecutor did not expressly request an increase.

The court also failed to provide grounds for reevaluating the aggravating 

and mitigating factors. Further, the finding of aggravating factor two constituted 

double-counting, as it relied solely on the nature and significance of the victim's 

injury – a broken jaw – which was an element of the underlying offense of 

aggravated assault. See N.J.S.A. 2C:11-1(d) (stating that a "significant bodily 

injury" is one that "creates a temporary loss of the function of any bodily 

member or organ or temporary loss of any one of the five senses"); State v. 

Kromphold, 162 N.J. 345, 353-55 (2000) (reviewing cases applying "prohibition 

against using evidence both for sentencing purposes and to establish an element 

of an offense").4

 

4

 We recognize that the court would have been justified in finding factor two if 

it found that defendant struck the victim while he was already on the ground, 

vulnerable, and incapable of resisting. See State v. Lawless, 214 N.J. 594, 610-

11 (2013) (noting that the factor "focuses on the setting of the offense itself with 

particular attention to any factors that rendered the victim vulnerable or 

incapable of resistance"); State v. Gallagher, 286 N.J. Super. 1, 20 (App. Div. 

1995). However, the court did not make that finding, despite defendant's signed 

admission. Alternatively, the court may have applied factor two if it found that 

the victim's injuries "were far in excess of that required to satisfy" the statutory 

elements. State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992) (addressing 

aggravating factor one). But, the court did not make specific findings to support 

such a conclusion.
11 A-5600-17T5

The court's ultimate determination that the mitigating factors outweighed 

the aggravating – which was more favorable to defendant than its finding four 

months earlier that the factors were in equipoise – was also inherently 

inconsistent with the court's decision to impose a more onerous sentence than it 

imposed four months earlier. Although we review deferentially a court's 

balancing of the aggravating and mitigating factors supported by credible 

evidence in the record, that standard does not apply if the court fails to provide 

sufficient insight into its decision, State v. Case, 220 N.J. 49, 65 (2014), or the 

court abused its discretion, see State v. Blackmon, 202 N.J. 283, 297 (2010), 

such as when a decision lacks a rational explanation, see Flagg v. Essex Cnty. 

Prosecutor, 171 N.J. 561, 571 (2002) (defining "abuse of discretion"). Here, the 

court provided no rational explanation or insight into why a more favorable 

balancing of aggravating and mitigating factors would produce a significantly 

more burdensome sentence.

Therefore, we reverse the imposition of the five-year probationary term 

and remand for entry of a two-year probationary term, consistent with the court's 

first oral sentence.
12 A-5600-17T5

III.

Turning to the issue of restitution, we are constrained to reverse the court's 

determination of the victim's monetary loss, as well as defendant's ability to pay. 

As for the determination of loss, defendant properly challenged the foundation 

of the bills, questioning whether they all pertained to assault-related injuries.

Although the Rules of Evidence do not strictly apply in a restitution 

hearing, any restrictions on the presentation of evidence must be reasonable and 

the court must afford a defendant a meaningful opportunity to cross-examine, 

where warranted. "What the judge should hear or have presented for his 

consideration in such a proceeding is subject to the parameter of reasonableness; 

not technical rules of evidence. * * * Of course, in proceedings such as this a 

defendant is free to cross-examine witnesses and contradict them with other 

evidence." State v. Harris, 70 N.J. 586, 598 (1976) (quoting People v. Tidwell, 

338 N.E.2d 113, 117 (Ill. Ct. App. 1975)).

We do not suggest that a victim invariably must be presented at a 

restitution hearing and subjected to cross-examination. A court must guard 

against subjecting a victim to intimidation, harassment or abuse. See N.J.S.A. 

52:4B-36(c); see also State v. Kane, 449 N.J. Super. 119, 133 (App. Div. 2017). 

However, the record reflects numerous discrepancies that warranted the 
13 A-5600-17T5

requirement of a live witness. The prosecutor initially sought restitution of 

$10,000, asserting that Charity Care had defrayed part of the victim's bills. Yet, 

he shifted gears and adopted the victim's position, set forth in his affidavit, that 

he deserved $15,180, which he said Charity Care had not reduced. The victim 

himself presented three different amounts to the court: $15,180; $20,000; and 

$25,000. Under those circumstances, the State was obliged to allow defendant 

to cross-examine the victim, or a person who could testify, based on personal 

knowledge, that the medical costs related to the injury defendant caused, and to 

the amounts that remained due and owing.

Furthermore, the court's determination that defendant had the ability to 

pay $15,180 over five years lacked support in the record. Notably, the State 

suggested that defendant could pay between $100 and $150 a month, roughly 

half the $253 a month rate required by the court. Defendant had been 

unemployed since July 2017; he was temporarily disabled; he lacked any assets 

or other sources of income. Even if he regained employment through a staffing 

agency, the record provided an insufficient basis to conclude that defendant 

would have over $250 a month, after covering essential expenses, to pay toward 

restitution. See State v. Newman, 132 N.J. 159, 169-70 (1993) (discussing the 

ability-to-pay determination). We do not minimize the gravity of the victim's 
14 A-5600-17T5

injuries, or the emotional and financial toll that defendant's admitted assault has 

imposed. Although restitution serves both a compensatory and rehabilitative 

purpose, it does not substitute for the victim's other civil remedies. State v. 

Masce, 452 N.J. Super. 347, 352 (App. Div. 2017); see also Newman, 132 N.J. 

at 173 ("Imposing a sentence of restitution that requires payment of more than 

a defendant can afford would frustrate the goal of rehabilitation.").

IV.

In sum, we remand for modification of the judgment of conviction by 

restoring the two-year term of probation that the court initially imposed. We 

also reverse the restitution order and remand for a restitution hearing where the 

victim or another appropriate witness is available for cross-examination. We 

also remand the matter for reconsideration of defendant's ability to pay. We do 

not retain jurisdiction.