                            NOT FOR PUBLICATION WITHOUT THE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-1855-17T3

STATE OF NEW JERSEY,

      Plaintiff-Respondent,

      v.

SHANNON M. SIDOREK,

     Defendant-Appellant.
____________________________

                Submitted February 25, 2019 – Decided April 16, 2019

                Before Judges Gooden Brown and Rose.

                On appeal from Superior Court of New Jersey, Law
                Division, Burlington County, Indictment No. 13-04-
                0480.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Stephen W. Kirsch, Assistant Deputy Public
                Defender, of counsel and on the brief).

                Scott A. Coffina, Burlington County Prosecutor,
                attorney for respondent (Jennifer B. Paszkiewicz,
                Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      On April 30, 2013, defendant Shannon M. Sidorek was indicted by a

Burlington County grand jury and charged with first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1) (count one); second-degree vehicular

homicide, N.J.S.A. 2C:11-5(a), (count two); and third-degree possession of a

controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), (count three). On

April 12, 2017, defendant executed a plea agreement, pursuant to which she

entered an "open plea" 1 to count two of the indictment, conditioned only upon

the State's agreement to dismiss the remaining charges and related motor vehicle

summonses. On August 31, 2017, she was sentenced to a five-year term of

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2, and ordered to pay restitution in the amount of $21,028.41. She now appeals

raising the following point for our consideration:

            THE MATTER SHOULD BE REMANDED FOR A
            RESTITUTION HEARING; NO FINDING WAS
            MADE OF DEFENDANT'S ABILITY TO PAY THE
            LARGE RESTITUTION ORDER.

We agree and remand.




1
  An "open plea" is a plea "that d[oes] not include a recommendation from the
State, nor a prior indication from the court, regarding sentence." State v. Kates,
426 N.J. Super. 32, 42 n.4 (App. Div. 2012).
                                                                          A-1855-17T3
                                        2
      The charges stemmed from defendant's involvement in a 2012 two-car

motor vehicle accident in which the driver of the other vehicle was killed , and

defendant, who was unconscious, was airlifted from the crash site to an area

hospital. There has been extensive motion practice in this case, including

appellate litigation, challenging the constitutionality of the warrantless seizure

of evidence from defendant's vehicle at the scene, as well as blood drawn from

defendant at the hospital without a warrant, none of which is pertinent to the

sole issue raised in this appeal. 2 See State v. Sidorek, No. A-2877-13 (App. Div.

Oct. 7, 2014); State v. Sidorek, No. A-2877-13 (App. Div. Apr. 15, 2016).

      Pertinent to this appeal, at the sentencing hearing, the State asked the trial

court to impose the maximum sentence for a second-degree offense of ten years'

imprisonment, subject to NERA. N.J.S.A. 2C:43-6(a)(2). In contrast, defendant

asked the court to sentence defendant "to a term appropriate to a crime of one

degree lower," pursuant to N.J.S.A. 2C:44-1(f)(2), and impose a three-year term

of imprisonment, subject to NERA. The court rejected both requests and, based

upon its assessment of the aggravating and mitigating factors, sentenced




2
    Initially, defendant continued to challenge the denial of her suppression
motion in this appeal. However, she subsequently withdrew that challenge in
its entirety.
                                                                            A-1855-17T3
                                         3
defendant to a five-year term of imprisonment, subject to NERA, the minimum

term for a second-degree conviction.

      In imposing the sentence, the court found aggravating factor three,

N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another

offense"); and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for

deterring the defendant and others from violating the law"), giving each factor

"moderate weight." In mitigation, the court accepted defendant's arguments and

found mitigating factor six, N.J.S.A. 2C:44-1(b)(6) ("defendant . . . will

compensate the victim . . . for the damage or injury . . . sustained"); mitigating

factor seven, N.J.S.A. 2C:44-1(b)(7) ("defendant has no history of prior

delinquency or criminal activity"); mitigating factor nine, N.J.S.A. 2C:44 -

1(b)(9) ("[t]he character and attitude of the defendant indicate that [s]he is

unlikely to commit another offense"); and mitigating factor eleven, N.J.S.A.

2C:44-1(b)(11) ("[t]he imprisonment of the defendant would entail excessive

hardship to . . . [her] dependents"). The court determined that "[t]he mitigating

factors . . . outweigh[ed] the aggravating factors on both a qualitative and a

quantitative basis[,]" and, on September 1, 2017, entered the memorializing

judgment of conviction that is the subject of this appeal.




                                                                          A-1855-17T3
                                        4
      On appeal, defendant argues the court "simply imposed $21,028.41 in

restitution with no statement of reasons," in violation of "basic sentencing

principle[s]"   and   N.J.S.A.   2C:44-2(c)(1),    requiring    consideration     of

"defendant's ability to pay . . . when imposing restitution." We agree.

      "[R]estitution is proper only when the loss sustained by a victim is the

direct result of the criminal offense." State v. Newman, 132 N.J. 159, 169

(1993). In imposing restitution, "the court must balance the goals of victim-

compensation and offender-rehabilitation, and thoughtfully establish a fair and

reasonable amount of restitution and method of repayment." Id. at 173. Indeed,

before imposing restitution, "due process requires a hearing on both the ability

to pay and the time period for making restitution." State v. McLaughlin, 310

N.J. Super. 242, 264 (App. Div. 1998) (quoting State v. Orji, 277 N.J. Super.

582, 589 (App. Div. 1994)).

      Specifically, before imposing restitution, courts are to consider "if the

defendant is able, or given a fair opportunity to do so, will be able to . . . make

restitution." Newman, 132 N.J. at 169 (quoting N.J.S.A. 2C:44-2(b)). "If the

court is satisfied that a defendant possesses or could possess that ability, it may

set 'the amount and method of payment . . . tak[ing] into account the financial

resources of the defendant and the nature of the burden that its payment will


                                                                           A-1855-17T3
                                        5
impose.'" Ibid. (alterations in original) (quoting N.J.S.A. 2C:44-2(c)). "[I]n

determining the amount and method of payment of restitution, the court . . . shall

set the amount of restitution so as to provide the victim with the fullest

compensation for loss that is consistent with the defendant's ability to pay."

McLaughlin, 310 N.J. Super. at 263 (quoting N.J.S.A. 2C:44-2(c)).

      Here, the restitution sought consisted of expenses incurred by the

decedent's husband for various funeral expenses and attorney fees.            The

expenses were itemized in the Victim Impact Statement submitted to the court

and counsel as part of the presentence report, to which defendant had no

objections or corrections. The presentence report also indicated that defendant,

a single mother of two young children, was a high school graduate, attended

Burlington County Community College for three months, and worked as a

waitress and an after-school helper.

      Defendant does not appear to dispute the propriety of the court ordering

restitution, which she besought at sentencing, her obligation to pay restitution

to "the nearest relative of the victim," or the amount of the "loss[.]" N.J.S.A.

2C:44-2(b)(1). Absent from this record, however, is the court's findings of

defendant's ability to pay the amount of restitution ordered and the terms of

payment. To that point, although defendant acknowledged in her sentencing


                                                                          A-1855-17T3
                                        6
allocution that she "work[ed] seven days a week," she explained that "in New

Jersey[,] it[ is] not easy. It[ is] very expensive and I[ am] by myself." Defense

counsel also represented that "[i]n the five[-]and-a-half years since the pendency

of this case and [defendant's] release from jail[,] she has worked full[-]time" but

"[i]t has not been easy for her to raise these two children."

      Although the court noted that "defendant work[ed] full[-]time," was

"raising two children" as "a single mother," and "expressed a willingness to pay

restitution[,]" 3 the court failed to assess her ability to pay restitution and the

terms of payment. We have held that after a court decides to award restitution,

"the ability to pay and the time period for making restitution" should ordinarily

be explained by the court. Orji, 277 N.J. Super. at 589-90; see also State v.

Kennedy, 152 N.J. 413, 425 (1998); McLaughlin, 310 N.J. Super. at 264-65.

Indeed, under N.J.S.A. 2C:46-1(a), "the court may grant permission for the

[restitution] payment to be made within a specified period of time or in specified

installments." "If no such permission is embodied in the sentence, the . . .

restitution shall be payable forthwith[.]"    Ibid.   Even "[w]hen a defendant



3
  In the plea form, defendant had also indicated that she was "aware that [she]
must pay restitution if the court finds there is a victim who has suffered a loss
and if the court finds that [she is] able or will be able in the future to pay
restitution[.]"
                                                                           A-1855-17T3
                                        7
sentenced . . . to make restitution is also sentenced to a custodial term . . . , the

court may require the defendant to pay installments on the . . . restitution."

N.J.S.A. 2C:46-1(b)(2).

      Thus, we affirm defendant's conviction and sentence, but vacate the

restitution imposed, and remand the matter for a restitution hearing for the trial

court to assess defendant's ability to pay and establish the terms of payment

pursuant to the proofs adduced at the hearing. See N.J.S.A. 2C:46-1. We do

not retain jurisdiction.




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