                                NOT FOR PUBLICATION WITHOUT THE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-3720-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MATTHEW OSEI,

     Defendant-Appellant.
__________________________

                    Submitted May 21, 2019 – Decided July 9, 2019

                    Before Judges Gilson and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment Nos. 15-11-
                    1337, 16-01-0112, 16-01-0124, 17-01-0095, 17-02-
                    0154, 17-06-0742, and 17-08-0993.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Cody T. Mason, Assistant Deputy Public
                    Defender, of counsel and on the briefs).

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Nancy A. Hulett, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Matthew Osei was charged with multiple crimes under seven

indictments. A jury convicted defendant of second-degree eluding, N.J.S.A.

2C:29-2(b). Thereafter, defendant entered into a plea agreement to resolve the

charges under the other six indictments. Defendant appeals from his conviction

of eluding and one of the sentences on his guilty pleas. He also contends that

he was improperly required to pay $8774 in restitution without a hearing or an

evaluation of his ability to pay. We affirm defendant's eluding conviction and

his sentences. We remand for a hearing on the amount of and the ability of

defendant to pay restitution.

                                        I.

      Between March 2015 and March 2017, defendant allegedly engaged in a

spree of crimes, including burglaries, theft, aggravated assault, possession of

heroin and fentanyl, and eluding. As noted, defendant was indicted for multiple

crimes in seven separate indictments.

      In the fall of 2017, defendant was tried on one of the charges: second-

degree eluding. The State alleged that on September 21, 2016, a number of

people complained about a man riding an all-terrain vehicle (ATV) on the streets

in a neighborhood in Colonia.     The police responded, and when they saw




                                                                        A-3720-17T1
                                        2
defendant about to ride off on an ATV, they ordered him to stop. Instead of

obeying that command, defendant sped off and ran a stop sign.

      Before trial, the State notified defendant and the trial court that it intended

to introduce evidence that defendant had driven in a reckless manner and had

been issued a motor vehicle ticket for reckless driving. The State contended that

the reckless driving was relevant to whether defendant created a risk of death or

injury, which is one of the elements of second-degree eluding.

      Initially, the trial court ruled that the ticket for reckless driving was

irrelevant because the court would make the ruling on the charge of reckless

driving. After the court reviewed the model jury charge on eluding, however, it

changed that ruling and held that the ticket for reckless driving was relevant and

admissible.

      The trial court also conducted a Rule 104 evidentiary hearing outside the

presence of the jury to determine whether the State could introduce evidence of

three calls, which had been made to the police on September 20 and September

21, 2016. In those calls, three people complained about the manner in which an

ATV was being driven on the streets in Colonia.

      The State argued that the calls were admissible to explain why the police

went to Arthur Avenue on the evening of September 21, 2016. The State also


                                                                             A-3720-17T1
                                         3
contended that the calls were present sense impressions and were admissible as

exceptions to the hearsay rule. In opposition, defense counsel objected to all

three calls, contending that each call was inadmissible hearsay and evidence of

prior bad acts that should be excluded under Rule 404(b).

        The trial court excluded the evidence concerning the details of two of the

calls, but ruled that the call made by N.D.1 was admissible because it explained

how the events leading up to the eluding unfolded. The court also reasoned that

such evidence helped to explain why the police responded to Arthur Avenue.

        At trial, the State presented testimony from two witnesses: N.D. and

Police Officer Perry Penna. N.D. lived in a neighborhood in Colonia. Sometime

around midday on September 21, 2016, N.D. called the Woodbury Police

Department to report that a "black male" was "flying up and down" his street on

an ATV. The State also played the recording of the call N.D. made to a police

dispatcher. N.D. told the dispatcher that a person was riding around on an ATV

without a helmet and the "guy is ripping it up out here."

        Officer Penna testified that he and Officer Glen Farkas responded to

Arthur Avenue at approximately 7 p.m. on September 21, 2016, after the police

had received "several complaints of someone driving around an ATV recklessly


1
    We use initials to protect the privacy interests of the witness.
                                                                          A-3720-17T1
                                          4
on the roads[.]" In response to an objection by defense counsel, the trial court

instructed the jury that the officer's use of the term "reckless" was to be

understood in its "common everyday parlance."

      Officer Penna went on to testify that he and Officer Farkas responded in

an unmarked black Ford Explorer, which was equipped with lights and a siren.

As the officers drove by 133 Arthur Avenue, they saw defendant walking away

from an ATV with a female companion. The officers parked their vehicle

approximately five to seven houses away from 133 Arthur Avenue, facing where

the ATV was parked.

      Approximately thirty to forty-five minutes after the officers parked their

vehicle, they observed defendant wheel the ATV onto the street and mount it

without a helmet. Officer Penna testified that he pulled his vehicle out in front

to block defendant's path, and yelled at defendant: "Police! Stop! Get off the

bike! Police! Stop!" According to Officer Penna, defendant then pulled a

bandana over his face and drove the ATV around the officers' vehicle "at a high

rate of speed," traveled down the road, and made a left turn without stopping at

a stop sign.

      Officer Penna explained that he elected not to pursue defendant because

of the potential dangers of a pursuit in a residential area. He also stated that


                                                                         A-3720-17T1
                                       5
Officer Farkas issued a ticket for reckless driving, and that ticket was admitted

into evidence over defense counsel's objection. Defendant elected not to testify

and called no witnesses.

      The trial court then reviewed the proposed jury instructions with counsel

and defendant. The court explained that it was using the model jury charge on

eluding with modification on the part of the charge addressing how the jury was

to consider evidence that defendant committed a motor vehicle offense. At that

time, neither the State nor defense counsel objected to the proposed jury

instructions.2

      After closing arguments, the trial court gave the final instructions to the

jury. In explaining the charge of eluding, the trial court outlined seven elements

the jury needed to consider. Those elements included: (1) whether defendant

was operating a motor vehicle on a street or highway; (2) whether Officer Penna

was a law enforcement officer; (3) whether Officer Penna signaled defendant to

bring his vehicle to a full stop; (4) whether defendant knew that the officer had



2
   Defense counsel did object to the modification of the eluding charge at the
very beginning of trial before the jury was sworn and before the Rule 104
hearing. After the State rested, the court again went over the eluding charge
with counsel. Thereafter, the court also provided counsel with a typed version
of the charge. Defense counsel did not renew its earlier objection.


                                                                          A-3720-17T1
                                        6
signaled him to stop; (5) whether defendant knew Officer Penna was a law

enforcement officer; (6) whether defendant knowingly fled or attempted to elude

the police; and (7) whether the flight or attempt to elude created a risk of death

or injury.

      The court also instructed the jury that it could infer risk of death or injury

if defendant's conduct in fleeing or attempting to elude violated a motor vehicle

law. The court explained that the alleged violation here was reckless driving,

which is driving a vehicle heedlessly in a willful or wanton disregard of the

rights or safety of others and in a manner that endangers, or is likely to endanger,

a person or property. The court also instructed the jury that they were not

determining defendant's guilt or innocence of reckless driving. Instead, the

court explained to the jury that they could consider the evidence surrounding the

issuance of the ticket for reckless driving in determining whether defendant

created a risk of death or injury. The court also explained to the jury that it was

free to accept or reject that inference. Thereafter, the jury found defendant

guilty of second-degree eluding.

      Several weeks after defendant was convicted of eluding, he entered into a

plea agreement to resolve all the other charges pending against him. Under the

plea agreement, defendant pled guilty to second-degree burglary, N.J.S.A.


                                                                            A-3720-17T1
                                         7
2C:18-2; third-degree burglary, N.J.S.A. 2C:18-2(a)(1); third-degree possession

of heroin with intent to distribute within 1000 feet of school property, N.J.S.A.

2C:35-5(a) and N.J.S.A. 2C:35-7; third-degree aggravated assault, N.J.S.A.

2C:12-1(b)(7); third-degree conspiracy to commit credit card fraud, N.J.S.A.

2C:5-2 and N.J.S.A. 2C:21-6(h); third-degree fraudulent use of a credit card,

N.J.S.A. 2C:21-6(h); and third-degree unlawful possession of fentanyl, N.J.S.A.

2C:35-10(a)(1).

      Defendant was sentenced to five years in prison on the conviction for

eluding. On the convictions resulting from his guilty pleas, he was sentenced to

five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for

the second-degree burglary; three years in prison for the third-degree burglary;

three years in prison for the aggravated assault; three years in prison for the

possession with intent to distribute within a school zone; four years in prison for

the fraudulent use of a credit card; and three years in prison for the unlawful

possession of fentanyl.      The sentencing judge merged the third-degree

conspiracy conviction into the conviction for fraudulent use of a credit card.

      On the issue of consecutive sentences, the sentencing court deviated from

the plea agreement and ruled that he would run all of the sentences concurrent

to each other, except the three-year sentence for unlawful possession of fentanyl.


                                                                           A-3720-17T1
                                        8
He ran that sentence consecutive to defendant's conviction for second-degree

burglary.

      On the third-degree burglary conviction, the court also imposed restitution

of $8774. The court did not hold a hearing on the amount of the restitution or

defendant's ability to pay.

                                       II.

      On appeal, defendant makes two primary arguments, each with subparts,

which he articulates as follows:

            POINT I – REVERSAL IS REQUIRED BECAUSE
            THE STATE'S ELUDING CASE WAS IMPROPERLY
            BOLSTERED     WITH    OTHER-CRIME   AND
            HEARSAY EVIDENCE ABOUT DEFENDANT
            RECKLESSLY     DRIVING   AN   ATV,  AND
            IRRELEVANT EVIDENCE ABOUT DEFENDANT
            BEING CHARGED WITH RECKLESS DRIVING.

                   A.    Reversal Is Required Because the
                   Testimony About Defendant Driving an
                   ATV at High Speeds Hours Before the
                   Incident Was Irrelevant Bad-Act Evidence,
                   Which the Court Did Not Instruct the Jury
                   on How to Consider

                   B.     Reversal Is Required Because the
                   Court Allowed the State to Admit
                   Irrelevant and Prejudicial Hearsay
                   Testimony About Multiple People Calling
                   the Police About Defendant "Recklessly"
                   Driving an ATV at Other Times


                                                                         A-3720-17T1
                                       9
                  C.    Reversal Is Required Because the
                  Testimony and Evidence About the
                  Officers Charging Defendant with
                  Reckless Driving Was Irrelevant and
                  Prejudicial

                  D.    The Cumulative Effect of the Errors
                  Deprived Defendant of Due Process and a
                  Fair Trial and Warrants Reversal

            POINT II – A REMAND IS REQUIRED BECAUSE
            THE COURT IMPOSED A CONSECUTIVE
            SENTENCE IN VIOLATION OF THE PLEA DEAL
            AND IMPOSED $8774 IN RESTITUTION WITHOUT
            HOLDING A HEARING ON THE AMOUNT OR
            DEFENDANT'S ABILITY TO PAY.

                  A.    A Remand Is Required Because the
                  Court Imposed a Consecutive Sentence in
                  Violation of the Plea Agreement

                  B.    A Remand Is Required Because the
                  Court Imposed $8774 in Restitution
                  Without Holding a Hearing on the Amount
                  of Restitution or Defendant's Ability to Pay

      These arguments present five issues:     (1) whether the testimony and

recorded call to the police concerning an individual driving an ATV prior to the

eluding was inadmissible evidence of prior bad acts; (2) whether the police

officer's testimony concerning citizen complaints about an ATV was

inadmissible hearsay and evidence of prior bad acts; (3) whether the ticket for

reckless driving was relevant to the charge of second-degree eluding; (4)


                                                                        A-3720-17T1
                                      10
whether the sentencing judge impermissibly deviated from the plea agreement

in sentencing defendant; and (5) whether there needs to be a restitution hearing.

      A.    The Testimony and Recorded Call Regarding Someone Driving an
            ATV Prior to the Eluding

      As noted, at trial, the court permitted the State to introduce testimony from

N.D. and to play the recording of N.D.'s call to the police. N.D. testified that he

had called the police on September 21, 2016, because an ATV "was flying up

and down [his] street." In N.D.'s recorded call, he reported that someone was

"riding around on an ATV very loud," was "ripping it up," and "flying up and

down the street" without a helmet or license plate.

      The trial court allowed N.D.'s testimony and the call to police, finding that

that evidence was probative to explain why the police responded to the

neighborhood. The court also ruled that the recording was an exception to the

hearsay rule because it contained N.D.'s present sense impressions of someone

riding an ATV.

      On this appeal, defendant argues that the testimony by N.D. and the

recording of N.D.'s call to the police were irrelevant bad-act evidence. We hold

that the trial court abused its discretion in determining N.D.'s testimony and

recorded call were relevant to a fact in issue. Nevertheless, the admission of the

evidence constitutes harmless error.

                                                                           A-3720-17T1
                                       11
      We review a trial court's evidentiary rulings for an abuse of discretion.

State v. Brown, 236 N.J. 497, 521-22 (2019) (quoting Pomerantz Paper Corp. v.

New Cmty. Corp., 207 N.J. 344, 371 (2011)). In contrast, our review is de novo

if the court applied the wrong test or failed to perform the required analysis.

State v. Garrison, 228 N.J. 182, 194 (2017) (citing State v. Rose, 206 N.J. 141,

158 (2011)).

      Rule 404(b) excludes "evidence of other crimes, wrongs, or acts . . . to

prove the disposition of a person in order to show that such person acted in

conformity therewith." N.J.R.E. 404(b). In this case, the State never alleged

that defendant had been the individual who N.D. observed driving an ATV.

Indeed, N.D. did not identify the driver of the ATV as defendant in either his

trial testimony or during the recording of his call to the police. Instead, N.D.

testified that he was unable to make a "facial identification" of the person he had

observed riding an ATV.       N.D. further testified that the only identifying

characteristics he had observed were that the driver was a "black male."

      Moreover, the prosecutor, in both her opening statement and closing

argument, relied on N.D.'s testimony and the recording of his call to the police

solely to explain why the police officers were investigating that area of Arthur

Avenue. In short, the State did not directly suggest that defendant was the


                                                                           A-3720-17T1
                                       12
individual who had been driving an ATV when N.D. called the police.

Nonetheless, the presentation of N.D.'s testimony and recorded call to the police

was sufficient to insinuate that defendant was the individual who N.D. had

observed driving an ATV earlier in the day, thereby allowing the jury to possibly

conclude that defendant had a propensity to drive recklessly. We will, therefore,

analyze the evidence under Rule 404(b), because the jury might have inferred

that defendant was the individual who N.D. observed driving an ATV earlier in

the day.

      As previously explained, "Rule 404(b) bars 'evidence of other crimes,

wrongs, or acts' when used 'to show that [a] person acted in conformity

therewith.'" State v. Green, 236 N.J. 71, 81 (2018) (alteration in original)

(quoting N.J.R.E. 404(b)). "Significantly, however, 'evidence that is intrinsic to

the charged crime is exempt from the strictures of Rule 404(b).'"         State v.

Santamaria, 236 N.J. 390, 409-10 (2019) (quoting Rose, 206 N.J. at 177). As

such, "[t]he threshold determination under Rule 404(b) is whether the evidence

relates to 'other crimes,' and thus is subject to continued analysis under Rule

404(b), or whether it is evidence intrinsic to the charged crime, and thus need

only satisfy the evidence rules relating to relevancy[.]" Id. at 410 (quoting Rose,

206 N.J. at 179).


                                                                           A-3720-17T1
                                       13
      In Rose, the Court held there are "two narrow categories" of intrinsic

evidence. 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233, 248

(3d Cir. 2010)). "First, evidence is intrinsic if it 'directly proves' the charged

offense." Ibid. (quoting Green, 617 F.3d at 248). "Second, 'uncharged acts

performed contemporaneously with the charged crime may be termed intrinsic

if they facilitate the commission of the charged crime.'" Ibid. (quoting Green,

617 F.3d at 249). All evidence of other bad acts not fitting within one of those

two "tight description[s]" must be analyzed under Rule 404(b). Id. at 180-82.

The Court in Rose also instructed courts to analyze "background or 'completes

the story' evidence" under Rule 404(b), rather than labeling it intrinsic to the

charged crime. Id. at 180-81 (quoting Green, 617 F.3d at 249) (noting "there is

no reason that our courts cannot allow, under our Rule 404(b), evidence to be

admitted for a . . . "necessary background" . . . purpose).

      Here, the evidence that someone was driving an ATV prior to defendant's

eluding incident was introduced as "background information" to explain why the

police responded to Arthur Avenue. The evidence neither directly proved an

element of the eluding charge against defendant nor did it constitute evidence

of contemporaneous bad acts that facilitated defendant's eluding. Instead, the

earlier operation of the ATV was separate from the activity underlying


                                                                          A-3720-17T1
                                       14
defendant's eluding charge. As such, it is not intrinsic evidence and, thus, must

be analyzed under Rule 404(b).

      Courts apply the four-part Cofield test to determine if bad-act evidence is

admissible under Rule 404(b). State v. Weaver, 219 N.J. 131, 150 (2014) (citing

State v. Cofield, 127 N.J. 328, 338 (1992)). The Cofield test allows courts to

admit bad-act evidence if it is: "(1) relevant to a material issue; (2) similar in

kind and reasonably close in time to the offense charged; (3) supported by clear

and convincing evidence; and (4) its prejudice does not outweigh its probative

value." Ibid. (citing Cofield, 127 N.J. at 338). If bad-act evidence "withstands

a Cofield analysis, before its admission the trial 'court must instruct the jury on

the limited use of the evidence' and 'explain precisely the permitted and

prohibited purposes of the evidence.'" State v. Prall, 231 N.J. 567, 582 (2018)

(quoting Cofield, 127 N.J. at 341).

      Here, the trial court found N.D.'s testimony and the recording of his call

had "probative value" and were relevant since they would address "why the

police ultimately responded . . . to the address[.]"      "There is seldom any

justification for admitting" evidence that explains why police are in a certain

area, absent a claim by the defendant "that the police acted arbitrarily in

approaching him [or her]." State v. Baker, 228 N.J. Super. 135, 139-40 (App.


                                                                           A-3720-17T1
                                       15
Div. 1988); accord State v. Branch, 182 N.J. 338, 350 (2005) (citing State v.

Irving, 114 N.J. 427, 447 (1989) (finding no need for a detective to justify why

he placed a defendant's photograph in an array since there was no alleged

arbitrary police action)); State v. Bankston, 63 N.J. 263, 272 (1973) ("[T]here

was no need . . . to explain that the police were looking for a person described

by the clothing he was wearing. There was no allegation that the police were

acting arbitrarily.").

      The trial court's ruling was an abuse of discretion as defendant had not

argued that the police were acting arbitrarily in responding to the area or in

attempting to stop defendant. See Branch, 182 N.J. at 350; Irving, 114 N.J. at

447; Bankston, 63 N.J. at 272; Baker, 228 N.J. Super. at 139-40. Thus, the

testimony of N.D. and his recorded call were not probative of a fact that was in

issue. As such, the evidence cannot satisfy prong one of the Cofield test.

      Having found the trial court abused its discretion through the improper

admission of irrelevant bad-act evidence, we now consider whether the error

was "clearly capable of producing an unjust result." R. 2:10-2; see also Prall,

231 N.J. at 587-88. "[T]o warrant reversal of defendant's conviction, [the]

errors, singly or collectively, must 'raise a reasonable doubt' as to whether they

affected the result reached by the jury." Prall, 231 N.J. at 588 (quoting State v.


                                                                          A-3720-17T1
                                       16
Macon, 57 N.J. 325, 336-37 (1971)); accord State v. Kemp, 195 N.J. 136, 149-

50 (2008). In addition, "[t]he error[s] must be evaluated 'in light of the overall

strength of the State's case.'" Prall, 231 N.J. at 588 (alterations in original)

(quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)).

      Here, N.D's testimony and the admission of his recorded call were

harmless error.   The testimony and recording were limited and not highly

prejudicial. Just as importantly, there was strong, independent evidence offered

against defendant on the eluding charge and the trial court appropriately

instructed the jury to focus on the elements necessary to prove eluding. Officer

Penna identified defendant as the individual who was involved in the eluding

incident on September 21, 2016. Officer Penna went on to testify that on that

date, he observed defendant move an ATV from a driveway, onto the roadway,

and then mount it. Officer Penna also testified that he had angled his police

vehicle in front of defendant, "activated the lights and sirens," and yelled

"Police! Stop! Get off the bike! Police! Stop!"

      According to Officer Penna, when he and his partner yelled at defendant

to stop, the siren on the police vehicle had had been switched off, the vehicle

was approximately seven to ten feet away from defendant with its windows

lowered, and defendant was still on the ATV "trying to start it with the kick


                                                                          A-3720-17T1
                                       17
start." Officer Penna testified that in response to their attempts to stop him,

defendant covered his face with a bandana, started the ATV, and drove around

the police vehicle at a "high rate of speed." Thereafter, Officer Penna observed

defendant drive the ATV past a stop sign without stopping.

      In sum, Officer Penna's testimony concerning the events he personally

observed on September 21, 2016, constitutes "overwhelming admissible

evidence on which to convict defendant" for second-degree eluding. See id. at

588-89. Accordingly, we find any errors by the trial court harmless "because,

when evaluated in light of the vast evidence against defendant, those errors were

not 'sufficient to raise a reasonable doubt as to whether [they] led the jury to a

result it otherwise might not have reached.'" Id. at 588 (alteration in original)

(quoting State v. Daniels, 182 N.J. 80, 95 (2004)).

      B.    The Testimony of the Police Officer Regarding Complaints About
            Someone Driving an ATV Prior to the Eluding
      At trial, Officer Penna testified that he and Officer Farkas had gone to the

neighborhood because the police had "received several complaints of someone

driving around an ATV recklessly on the roads in . . . Colonia[.]" Defense




                                                                          A-3720-17T1
                                       18
counsel objected to the term "reckless." The trial court overruled that objection

and instructed the jury as follows:


            I'm going to allow the testimony to stand with regards
            to the officer's use of reckless just to explain in the
            common everyday parlance of what reckless means to
            him. Okay? In the way - - and based on his
            communication skills. But please don't attach anything
            to that, other than the officer's description of what the
            call was about.

      Defendant now argues that Officer Penna's testimony that the police had

"received several complaints of someone driving around an ATV recklessly"

was inadmissible hearsay of bad acts. Notably, defense counsel did not object

to this testimony on that basis at trial. Accordingly, defendant must demonstrate

plain error to obtain relief. R. 2:10-2; see also Macon, 57 N.J. at 336-37.

      "It is well settled that the hearsay rule is not violated when a police officer

explains the reason he approached a suspect or went to the scene of the crime

by stating that he did so 'upon information received.'" Bankston, 63 N.J. at 268

(citation omitted). Such testimony is admissible, when relevant, "to show that

the officer was not acting in an arbitrary manner or to explain his [or her]

subsequent conduct." Ibid. The Court has ruled, however, that "when the officer

becomes more specific by repeating what some other person told him [or her]

concerning a crime by the accused the testimony violates the hearsay rule." Ibid.


                                                                             A-3720-17T1
                                        19
Accord Branch, 182 N.J. at 350. "The 'common thread' that renders testimony

about information received from non-testifying third parties inadmissible 'is that

a police officer may not imply to the jury that he possesses superior knowledge,

outside the record, that incriminates the defendant." Weaver, 219 N.J. at 152

(quoting Branch, 182 N.J. at 351).

      Here, it was error to admit Officer Penna's testimony as to the citizen

complaints. First, as previously detailed, the reason why the police were in the

area was not relevant to a fact in issue, since defendant had not argued that the

officers were acting arbitrarily in responding to the area or in attempting to stop

defendant. Second, even if Officer Penna's testimony had been relevant, it was

hearsay as it went beyond the general statement that he and Officer Farkas

traveled to the area of 133 Arthur Avenue "upon information received." Third,

while Officer Penna's testimony concerning the citizen complaints did not name

defendant, when combined with N.D.'s earlier testimony and the admission of

N.D.'s recorded call, that testimony insinuated that defendant was the individual

who had been "driving around an ATV recklessly" earlier that day, and

therefore, had the propensity to drive recklessly. Accordingly, Officer Penna's

testimony as to the citizen complaints was irrelevant hearsay evidence of

defendant's prior bad act.


                                                                           A-3720-17T1
                                       20
      Nonetheless, having carefully reviewed the record, we are convinced that

the testimony about the citizen complaints was not clearly capable of producing

an unjust result. R. 2:10-2. See also Weaver, 219 N.J. at 154-55 (2014); Kemp,

195 N.J. at 156 (finding even where testimony may implicate "the concerns

interdicted by Bankston," a reversal is not required where the totality of the

circumstances leads to the conclusion that the admission was harmless); Macon,

57 N.J. at 336 ("[N]ot 'any' possibility [of an unjust verdict] can be enough for

a rerun of the trial. The possibility must be real, one sufficient to raise a

reasonable doubt as to whether the error led the jury to a result it otherwise might

not have reached.").

      As previously discussed, the State presented strong, independent evidence

of defendant's guilt on the eluding charge through Officer Penna's testimony

concerning the events he personally observed on September 21, 2016. That

testimony addressed each of the elements required for a second-degree eluding

conviction. See Prall, 231 N.J. at 588.

      Moreover, the State did not highlight or inappropriately rely upon Officer

Penna's testimony concerning the citizen complaints in its opening statement or

closing argument. Cf. State v. Thomas, 168 N.J. Super. 10, 16 (App. Div. 1979)

(noting it was contrary to Bankston for the prosecutor to assert, during


                                                                            A-3720-17T1
                                        21
summation, that police learned from an informant that defendant may have been

involved in a robbery). In her opening, the prosecutor's sole reference to the

citizen complaints noted that "on September 21, 2016, members of the

Woodbridge Police Department received a report of someone riding an ATV on

the streets of Colonia. And they went to investigate." Similarly, in her closing

argument, the prosecutor stated that "[t]he evidence showed that Officer Penna

conducted an investigation on September 21, 2016 with his partner, Officer

Farkas. Because they had some calls about someone riding an ATV on the

streets of Colonia . . . [and] were directed to 133 Arthur Avenue." Accordingly,

the prosecutor's actual use of the testimony concerning the citizen complaints

illustrates that the State did not misuse the testimony to incriminate defendant.

In sum, the admission of Officer Penna's testimony concerning the citizen

complaints was not "clearly capable of producing an unjust result." R. 2:10-2;

Weaver, 219 N.J. at 155 (citing Branch, 182 N.J. at 353).

      C.    Whether the Summons for Reckless Driving Was Relevant to the
            Charge of Second-Degree Eluding
      Defendant also argues that the trial court committed reversible error in

allowing Officer Penna to testify that defendant was given a ticket for reckless

driving and in admitting that ticket into evidence. He argues that the ticket was

not relevant to the charge of second-degree eluding. As this issue also involves

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an evidentiary ruling, we again use an abuse of discretion standard of review.

Brown, 236 N.J. at 521-22 (quoting Pomerantz Paper Corp., 207 N.J. at 371).

      Defendant was charged with second-degree eluding under N.J.S.A. 2C:29-

2(b). That statute provides in relevant part:

            [a]ny person, while operating a motor vehicle on any
            street or highway in this State . . . who knowingly flees
            or attempts to elude any police or law enforcement
            officer after having received any signal from such
            officer to bring the vehicle . . . to a full stop commits a
            crime of the third degree; except that, a person is guilty
            of a crime of the second degree if the flight or attempt
            to elude creates a risk of death or injury to any person.

      Accordingly, second-degree eluding involves seven elements: (1) the

defendant was operating a motor vehicle on the streets or highway of th is State;

(2) the person who signaled him to stop was a police officer or law enforcement

officer; (3) the officer signaled defendant to bring the vehicle to a full stop; (4)

defendant knew that the officer had signaled him to bring the vehicle to a full

stop; (5) defendant knew that the officer was a police officer or law enforcement

officer; (6) defendant knowingly fled or attempted to elude the officer; and (7)

the flight or attempt to elude created a risk of death or injury to any person.

N.J.S.A. 2C:29-2(b). See also Model Jury Charges (Criminal), "Eluding an

Officer (N.J.S.A. 2C:29-2(b))" (rev. Nov. 15, 2004). Moreover, the eluding

statute contains "a permissive inference that the flight or attempt to elude creates

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                                        23
a risk of death or injury" if the defendant's conduct involved a violation of the

motor vehicle laws of New Jersey. N.J.S.A. 2C:29-2(b); accord State v. Dixon,

346 N.J. Super. 126, 137-38 (App. Div. 2001).

      Here, the trial court properly instructed the jury on the elements of second-

degree eluding. In that regard, the trial court used the model jury charge, with

some modifications to tailor the charge to the facts of the case. Specifically, the

trial court instructed the jury on the first six elements of eluding and then

informed the jury that if they found each of those six elements were proven

beyond a reasonable doubt, then they were to consider the seventh element. The

court then properly instructed the jury as to the seventh element. In that regard,

the court informed the jury that defendant had been charged with the motor

vehicle offense of reckless driving and then correctly defined reckless driving.

The court also properly informed the jury that they were not to decide whether

defendant engaged in reckless driving as that would be decided by the court.

Finally, the court correctly informed the jury that they were not compelled to

draw the inference and they were free to accept or reject the inference.

      In summary, when we consider the limited testimony concerning the

issuance of the ticket for reckless driving in the full context of the proper jury

instructions concerning second-degree eluding, we discern no abuse of


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                                       24
discretion in the trial court's admission of the ticket for reckless driving . The

important consideration is that the jury was properly charged with the elements

of eluding, including whether the flight or attempt to elude created a risk of

death or injury to any person. See Dixon, 346 N.J. Super. at 138; State v. Dorko,

298 N.J. Super. 54, 59-60 (App. Div. 1997) (reversing because trial court did

not charge jury as to elements of alleged motor vehicle offenses, not because

motor vehicle summonses had been admitted into evidence). See also State v.

Cagno, 211 N.J. 488, 514-15 (2002) (explaining that jury charges are reviewed

as a whole and that courts "must not lose sight of the distinction between

instructions that are legally incorrect and those that are merely 'capable of being

improved.'" (quoting State v. Delibero, 149 N.J. 90, 106 (1997))).

      Finally, we reject defendant's arguments concerning cumulative error.

Any errors surrounding the admittance of N.D.'s testimony, the recorded call,

and Officer Penna's testimony concerning the citizen complaints were all

harmless. Moreover, in combination, that testimony and evidence was also

harmless.

      D.    Whether the Sentencing Judge Impermissibly Deviated From the
            Plea Agreement in Sentencing Defendant

      Following his jury conviction for eluding, defendant negotiated a plea

agreement to resolve all his other charges. Under that agreement, the State

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                                       25
agreed to recommend that defendant be sentenced between four and five years

on six different crimes, that all those sentences would run concurrent to each

other and defendant's sentence on the eluding conviction, except that defendant's

sentence of second-degree burglary, which would be five years subject to

NERA, would run consecutive to the eluding sentence.           At the time that

defendant entered into the plea agreement, the court had not yet sentenced him

on his eluding conviction.

        Thereafter, on March 22, 2018, defendant was sentenced to five years in

prison for the jury conviction of second-degree eluding. A week later, on March

27, 2018, defendant was sentenced on the six crimes to which he had pled guilty.

The sentencing court accepted and imposed the recommended five-year prison

term on the second-degree burglary conviction. The court also imposed the

recommended four-year term on the conviction for fraudulent use of a credit

card.    On the remaining four convictions, the court imposed more lenient

sentences than recommended by the State in the plea agreement. Specifically,

the court sentenced defendant to a three-year prison term on each of the four

convictions, rather than the recommended four-year terms.

        The court also deviated from the State's recommendation concerning the

consecutive sentence. The court ruled that all of defendant's sentences resulting


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                                      26
from his guilty pleas would run concurrent to each other, with one exception.

The court ruled that defendant's three-year sentence for third-degree possession

of fentanyl would run consecutive to defendant's five-year sentence for second-

degree burglary. The court explained that it was making this ruling because

defendant possessed fentanyl when he was on pretrial release from several of

his other charges. The court also explained that it felt that such a consecutive

sentence was more appropriate and would result in a shorter period of

incarceration than anticipated by the plea agreement. In that regard, the court

pointed out that if it followed the State's recommendation, defendant's aggregate

sentence would be for ten years in prison, with five of those years subject to

NERA. Under the court's sentences, defendant's aggregate time in prison would

be eight years, with five years subject to NERA.

      We review sentencing determinations under a deferential standard. State

v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 549, 606

(2013)). We do not substitute our judgment for the judgment of the sentencing

court. Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180

(2009); then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead, we

will affirm a sentence unless

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the

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                                      27
            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."

            [State v. Miller, 237 N.J. 15, 28 (2019) (alteration in
            original) (quoting State v. Fuentes, 217 N.J. 57, 70
            (2014)).]

      When sentencing a defendant for multiple offenses, "such multiple

sentences shall run concurrently or consecutively as the court determines at the

time of sentence[.]" N.J.S.A. 2C:44-5(a). In State v. Yarbough, 100 N.J. 627,

643-44 (1985), our Supreme Court established criteria that a sentencing court

must consider when deciding whether to impose consecutive sentences.

Namely, the court must evaluate whether


            (a) the crimes and their objectives were predominantly
            independent of each other;

            (b) the crimes involved separate acts of violence or
            threats of violence;

            (c) the crimes were committed at different times or
            separate places, rather than being committed so closely
            in time and place as to indicate a single period of
            aberrant behavior;

            (d) any of the crimes involved multiple victims;

            (e) the convictions for which the sentences are to be
            imposed are numerous[.]


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                                      28
            [Id. at 644.]

      In addition, a sentencing court may also consider and weigh the existence

of a negotiated plea agreement in deciding to impose consecutive sentences.

State v. S.C., 289 N.J. Super. 61, 71 (App. Div. 1996) (citing State v. Balfour,

135 N.J. 30, 37-40 (1994)). The presence of a plea agreement, however, does

not relieve a court of its duty to address the Yarbough factors, see State v.

Randolph, 210 N.J. 330, 335-37, 353 (2012), nor does it eliminate a "court's

ability to exercise discretion in sentencing." State v. Hess, 207 N.J. 123, 151

(2011). "[A] criminal sentence is always and solely committed to the discretion

of the trial court to be exercised within the standards prescribed by the Code of

Criminal Justice." Ibid. (alteration in original) (quoting State v. Warren, 115

N.J. 433, 447 (1989)).

      Nonetheless, a defendant is "entitled to withdraw a guilty plea if the court

imposes a harsher sentence than that contemplated by the plea agreement." State

v. McNeal, 237 N.J. 494, 499 (2019) (quoting State v. Bellamy, 178 N.J. 127,

135 (2003)); accord Warren, 115 N.J. at 443.          To receive relief from the

imposition of a "harsher sentence," however, "a defendant must show that he or

she was prejudiced by enforcement of the agreement." Bellamy, 178 N.J. at 135

(citing State v. Howard, 110 N.J. 113, 123 (1988)).

                                                                          A-3720-17T1
                                      29
      Here, defendant contends that the court impermissibly deviated from the

plea agreement by running his sentence for third-degree possession of fentanyl

consecutive to his sentence for second-degree burglary. We are not persuaded

by this argument because the sentence imposed was, in aggregate, less than the

sentence recommended by the State. Defendant would only have a longer

sentence if we were to reverse his conviction for eluding. Since we have rejected

that portion of his appeal, defendant has no grounds to challenge his sente nces

because, in aggregate, the sentences are less than what the State was

recommending, and the court appropriately detailed its reasons for imposing the

consecutive sentence in its thorough analysis of the Yarbough factors.

      E.     Whether There Needs to be a Hearing on Restitution

      As noted, in connection with defendant's conviction for third-degree

burglary, the court ordered defendant to pay restitution of $8774. The court,

however, did that without a hearing to address either the amount of the

restitution or defendant's ability to pay the restitution.

      "[R]estitution serves to rehabilitate the wrongdoer and to compensate the

victim of the wrongdoer's conduct." State v. Newman, 132 N.J. 159, 169 (1993);

see also N.J.S.A. 2C:43-3 ("A person who has been convicted of an offense may

be sentenced to pay a fine, to make restitution, or both[.]").      In imposing


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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." Newman, 132 N.J. at 173. If there is

a good-faith dispute over the amount of loss or defendant's ability to pay, the

court is required to conduct a restitution hearing to resolve those issues. See

N.J.S.A. 2C:44-2(c); RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459,

477 (2018) ("A court imposing restitution must 'conduct at least a summary

hearing' to determine the ability to pay." (quoting State v. Paladino, 203 N.J.

Super. 537, 547 (App. Div. 1985))); State v. Scribner, 298 N.J. Super. 366, 372

(App. Div. 1997); State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div.

1994). Here, as noted, the sentencing court did not conduct a restitution hearing.

Accordingly, we vacate the award of $8774 in restitution and remand for a

hearing to determine the amount of restitution and defendant's ability to pay.

      Defendant's conviction for eluding is affirmed. His sentences are also

affirmed. We remand for a restitution hearing. We do not retain jurisdiction.




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