                        NOT FOR PUBLICATION WITHOUT THE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-2754-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

GILBERTO VILLANUEVA, a/k/a
GILBERTO VILLANUEVA, JR.,
GILBERT VILLANUEVA, and
GILBERTO VELLANUERA,

     Defendant-Appellant.
_______________________________

              Argued May 15, 2018 – Decided July 17, 2018

              Before Judges Reisner, Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              14-08-2601.

              Marcia Blum, Assistant Deputy Public Defender,
              argued the cause for appellant (Joseph E.
              Krakora, Public Defender, attorney; Marcia
              Blum, of counsel and on the brief).

              Arielle E. Katz, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General, attorney; Arielle E.
              Katz, of counsel and on the brief).

              Appellant filed a pro se supplemental brief.
PER CURIAM

     In 2014, a grand jury charged defendant Gilberto Villanueva

with:    (1)   first-degree   murder,      N.J.S.A.   2C:11-3(a)(1)   or   (2)

(count   one);    (2)   first-degree    felony   murder,   N.J.S.A.    2C:11-

3(a)(3) (count two); (3) second-degree burglary, N.J.S.A. 2C:18-

2(a)(1) (count three); (4) first-degree criminal attempt/murder,

N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) or (2) (count four);

(5) third-degree possession of a weapon for unlawful purpose,

N.J.S.A. 2C:39-4(d) (count five); and (6) fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d) (count six).               During

pretrial proceedings, the trial court denied defendant's motion

to exclude statements he made to police during interrogation.              The

court further granted the State's motion to admit text messages

defendant sent to his ex-girlfriend, K.D. (Karen),1 and evidence

of a domestic violence incident involving the couple.

     Following a six-day trial, a jury found defendant guilty on

all counts.      The judge sentenced defendant to an aggregate sixty

years in prison, subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2.        The judge also ordered defendant to pay

restitution of $8910.         For the reasons that follow, we affirm


1
   We use the victims' initials to protect their privacy.  In
addition, for ease of reference, we refer to each victim by a
pseudonym.


                                       2                              A-2754-15T2
defendant's   judgment    of   conviction,    except   for   the   provision

regarding restitution, which we vacate and remand for a restitution

hearing.

                                    I

     We derive the following facts from the trial testimony.                 On

October 27, 2013, Karen and defendant, her boyfriend at the time,

had an argument that ended with defendant hitting Karen in the

face.   Defendant told Karen "he was the devil," and threatened he

"would hurt [Karen] and [her] family."         Karen called the police,

and the police charged defendant with simple assault, criminal

mischief, and obstructing justice.        Defendant pled guilty to at

least simple assault.2

     The following day, defendant told Karen he had been drunk the

night   before,   and    accidentally   hit    her.     Karen      ended   the

relationship, but the two continued to exchange text messages.

Eventually, the text messages became threatening, and Karen feared

for her family's safety.

     On November 13, 2013, defendant texted Karen, requesting to

sleep at her home.       Karen repeatedly told defendant she did not




2
  Defendant's brief indicates he pled guilty only to simple
assault; however, at the N.J.R.E. 404(b) hearing, the motion judge
stated defendant pled guilty to all three charges and defense
counsel did not challenge this statement.

                                    3                                 A-2754-15T2
wish to see him.     Defendant also called Karen four times, but she

did not respond.

     Around 9:00 p.m. that same day, Karen and her mother, S.D.

(Sara), went upstairs to put Karen's daughter and nephew to bed.

Around   10:30   p.m.,    defendant    entered     Karen's   bedroom   with    a

screwdriver.      Karen     ordered    defendant    to   leave.      Defendant

initially    ignored     her   command,     but    eventually     dropped    the

screwdriver.

     Sara entered Karen's bedroom, and also demanded defendant

leave.   Sara then told Karen to remain upstairs while she escorted

defendant to the front door.          Karen ran downstairs when she heard

her mother scream.       She saw defendant's hand thrusting towards her

mother, and "[i]t appeared as if he was punching her."                      Karen

tried to intervene, but when defendant turned around, she saw he

had "a bloody knife in his hand."           Karen further testified,

            when I pushed him, he stabbed me twice in my
            hip.   I fell onto my knees.   He stabbed me
            twice in my back. And when I tried to get up,
            he went to stab me in my heart, but I put my
            arm up in defense and the blade went into my
            forearm. And I tried to scramble up to catch
            my balance and I looked over and my mom was
            laid out on the floor completely unconscious
            at this point.

Subsequently, defendant asked Karen for her car keys, and she

lied, telling him the keys were in the living room. When defendant

went to get the keys, Karen escaped and ran towards her neighbor's

                                        4                              A-2754-15T2
house.    Defendant    ran    after   Karen,   but   fled   when   she   began

screaming.     The neighbor then called the police.

      First responders transported Sara to Cooper Hospital, where

she died at 11:21 p.m.       Karen went to the same hospital, where she

received treatment for stab wounds to her neck (near her carotid

artery), collar bone, both sides of her abdomen, and defensive

wounds on her arms.

      Merchantville police officer, Sergeant Greg Miller went to

the crime scene at 10:34 p.m.         While there, he received a report

that the Camden City police had a suspect — later identified as

defendant — in custody at Lady of Lourdes Hospital.           Defendant had

a knife wound in his hand.

      Sergeant Miller arrived at the hospital around midnight,

November 14, 2013, and took custody of defendant.            At that point,

defendant was sleeping and handcuffed to a gurney.             Around 5:30-

6:00 a.m., defendant woke up, and a doctor stitched his hand.               At

some point during defendant's stay at the hospital, staff gave him

Ativan and Haldol because he was "combative."

      Around 6:00 a.m., Sergeant Miller transported defendant to

the Camden County Prosecutor's office for processing. Upon leaving

the hospital, defendant could walk on his own, and neither stumbled

nor   leaned   on   anyone    for   support.    Sergeant    Miller   further

testified,     based   upon     his   experience     with   "hundreds"      of

                                       5                             A-2754-15T2
intoxicated individuals, that defendant appeared oriented, alert,

and not intoxicated.

     Also on November 14, 2013, a neighbor of the victims found a

knife and believed it may have been involved in the homicide; the

neighbor called police who retrieved the knife.   A lab technician

found both defendant's and Karen's DNA on the knife.

     That same day, a medical examiner performed an autopsy on

Sara.    He noted she had "seven stab and incise wounds."   One stab

wound was around four inches deep and struck Sara's lung and aorta.

He opined this caused massive bleeding and rapid death.     Sara also

had a stab wound to her stomach, which he believed could also have

caused death, either from bleeding or infection.       The medical

examiner further opined Sara died from the stab wound to her aorta,

and no other preexisting injuries or disease contributed to her

death.

     On November 14, 2013, at around 2:00 a.m., defendant's sister

Nancy provided a statement to the police, which the judge permitted

the State to play for the jury.       In her statement, Nancy told

police her brother called her on the night of the homicide.          He

stated "he was hurt," "bleeding," "dying," and "wanted to die."

When Nancy found defendant, he was bleeding, and told her that he

"and [Karen] got in a sword fight."   He also said "something about

stabbing [Karen and her mom] in the lung."         Nancy explained

                                  6                           A-2754-15T2
defendant "was drunk" and he "drinks a lot, a lot, a lot."           Nancy

took    defendant     to   the   hospital,   where   police   ultimately

apprehended him.

       Detective Peter Longo, who interrogated defendant, testified

at the pretrial suppression hearing.           He stated that at the

interrogation,      defendant    appeared    "tired,"   "evasive,"     and

"cautious."    He further testified he read defendant his Miranda3

warnings and defendant signed the Miranda form.           The detective

stated defendant did not appear intoxicated or under the influence

of drugs during the interrogation, and defendant was able to

maintain a coherent conversation.        However, he also acknowledged

that during the interrogation, he had to ask defendant to stay

awake, sit up, and repeat himself.

       On appeal, defendant argues:

            POINT I

            THE ADMISSION OF THE INTERROGATION VIOLATED
            DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL
            RIGHTS TO REMAIN SILENT.     THE DRUGS HE WAS
            GIVEN AT THE HOSPITAL SHORTLY BEFORE THE
            INTERROGATION, COMBINED WITH THE EFFECTS OF
            HIS DAY-LONG DRINKING, HIS INJURY, AND HIS
            EXTREME FATIGUE[,] RENDERED HIM UNABLE TO
            WAIVE HIS RIGHTS KNOWINGLY, INTELLIGENTLY, AND
            VOLUNTARILY.




3
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                     7                           A-2754-15T2
          POINT II

          THE ADMISSION OF THE OCTOBER 27[, 2013]
          INCIDENT VIOLATED DEFENDANT'S CONSTITUTIONAL
          RIGHTS TO DUE PROCESS AND A FAIR TRIAL AND
          N.J.R.E. 404(b).

          POINT III

          THE SENTENCE IMPOSED ON THE MURDER — [FORTY-
          FIVE] YEARS, [THIRTY-EIGHT] YEARS AND THREE
          MONTHS WITHOUT PAROLE — IS EXCESSIVE.

          POINT IV

          THE   IMPOSITION  OF   RESTITUTION   VIOLATED
          DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY
          JURY.

          POINT V

          THE IMPOSITION OF $[8910] IN RESTITUTION
          WITHOUT A HEARING VIOLATED DEFENDANT'S RIGHTS
          TO DUE PROCESS AND N.J.S.A. 2C:44-2.

In his pro se brief, defendant argues:

          POINT I

          APPELLA[NT]   WILL    ARGUE   PROSECUTOR[IAL]
          MISCONDUCT WHEN THE STATE VOUCHED FOR THE
          CREDIBILITY   OF . . . [KAREN] . . . TO    THE
          JURY   DURING    THE   PROSECUTOR'S    CLOSING
          SUMMATION.     (In Addition, Prosecutorial
          Misconduct for Cumulatively Alleging the
          defendant broke in with a screwdriver knowing
          that defendant was paying rent to live at that
          residence).
                                II

     We first address defendant's contention that the trial court

erred in admitting his interrogation statements because the State

failed to prove beyond a reasonable doubt that he knowingly,

                                8                          A-2754-15T2
intelligently,       and    voluntarily        waived    his   Miranda    rights.

Specifically, defendant argues, "at the time of the interrogation,

he was in the midst of sleeping off a heavy bout of drinking and

was in pain from his injured hand . . . . [and] he was given two

drugs at the hospital, Ativan and Haldol, both of which induce

sleep."     He alleges these factors impaired his cognition, thereby

eliminating his ability to effectively waive his Miranda rights.

     We "engage in a 'searching and critical' review of the record

to ensure protection of a defendant's constitutional rights" when

assessing the propriety of a trial court's decision to admit a

police-obtained statement.             State v. Hreha, 217 N.J. 368, 381-82

(2014) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)).

Nonetheless, we defer to the trial court's credibility and factual

findings because of the trial court's ability to see and hear the

witnesses, and thereby obtain the intangible but crucial feel of

the case.    State v. Maltese, 222 N.J. 525, 543 (2015).               To warrant

reversal, a defendant must show that the admission of the statement

was error "capable of producing an unjust result."                Ibid.

     "A suspect's waiver of his [or her] Fifth Amendment right to

silence     is    valid    only   if    made    'voluntarily,    knowingly      and

intelligently.'" State v. Adams, 127 N.J. 438, 447 (1992) (quoting

Miranda,    384    U.S.    at   444).     The    State   bears   the   burden    of

establishing beyond a reasonable doubt that a confession is knowing

                                          9                               A-2754-15T2
and voluntary.    N.J.R.E. 104(c); State v. Nyhammer, 197 N.J. 383,

401 n.9 (2009).      The determination of the voluntariness of a

custodial statement requires an assessment of the totality of the

circumstances surrounding the giving of the statement.              State v.

Roach, 146 N.J. 208, 227 (1996).

       Contrary to defendant's assertion, his alleged intoxication

does   not   automatically    dictate     that   he   cannot   knowingly     or

intelligently waive his Miranda rights.            See State v. Warmbrun,

277 N.J. Super. 51, 61-62, 64 (App. Div. 1994) (holding defendant

knowingly and voluntarily waived his Miranda rights despite his

intoxication).      Rather,     in   applying      the   totality    of    the

circumstances test, the court must consider whether the defendant

spoke freely and with understanding, was able to correctly provide

pedigree information, and was capable of narrating the past events

and his or her participation in them.            Id. at 62, 64; State v.

Bindhammer, 44 N.J. 372, 383-84 (1965).

       Here, the judge thoroughly considered the totality of the

circumstances,    including    defendant's       prior   history    with   law

enforcement, his ability to coherently converse with Detective

Longo, and Detective Longo's testimony that defendant did not

appear intoxicated.    Defendant remained capable of conversing and

lacked indicia of intoxication despite receiving two drugs before

the interrogation and his alleged hangover.               Moreover, as the

                                     10                               A-2754-15T2
judge noted, Detective Longo found defendant engaged, inquisitive,

and "animated" during the interrogation.           Accordingly, the record

supports the judge's findings, and we affirm on this issue.

                                   III

     Defendant next argues the trial court erred in admitting

evidence of the October 27, 2013 domestic violence incident.                 We

disagree.

     N.J.R.E. 404(b) provides that evidence of one's prior crimes

or bad acts is inadmissible character evidence unless permitted

under N.J.R.E. 608(b) or, if it is proffered for a non-propensity

purpose,    "such   as   proof    of     motive,    opportunity,     intent,

preparation, plan, knowledge, identity or absence of mistake or

accident when such matters are relevant to a material issue in

dispute."   In State v. Cofield, our Supreme Court set forth the

following   four-pronged   test   to    govern     the   admission   of   such

evidence:

              1. The evidence of the other crime must be
                 admissible as relevant to a material
                 issue;

              2. It must be similar in kind and reasonably
                 close in time to the offense charged;

              3. The evidence of the other crime must be
                 clear and convincing; and

              4. The probative value of the evidence must
                 not be outweighed by its apparent
                 prejudice.

                                   11                                 A-2754-15T2
              [127 N.J. 328, 338 (1992) (citation omitted).]

       We give "great deference" to a trial judge's determination

on the admissibility of "other bad conduct" evidence.                       State v.

Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010) (citation

omitted).      We apply an abuse of discretion standard, and require

a    "clear   error     of   judgment"    to    overturn      the   trial    court's

determination.         State v. Castagna, 400 N.J. Super. 164, 182-83

(App. Div. 2008).

       In the instant matter, the trial judge did not abuse his

discretion      in    admitting    evidence      of    the     domestic     violence

incident.        He   appropriately      determined      the    circumstances       of

defendant's simple assault conviction were "highly relevant as

they go to the [S]tate's ability to show motive, intent, the

absence of mistake or accident, and perhaps . . . even a plan."

Additionally, he held the risk of prejudice "does not substantially

outweigh      the     probative    nature       of     the     evidence     favoring

admissibility" because the risk could be "adequately addressed

through the use of a limiting instruction."

       The judge appropriately found defendant's prior assault — and

his statements that he was "the devil" and would hurt Karen and

her family — were probative of defendant's motive, intent, absence

of    mistake,       and,    potentially,      plan.         Particularly,     these

statements — which were made less than three weeks before the

                                         12                                  A-2754-15T2
night in question — were necessary in demonstrating the State's

theory that defendant intentionally and knowingly murdered Sara

and attempted to murder Karen.              See, e.g., State v. Erazo, 126

N.J. 112, 131 (1991) (holding the defendant's prior statements

necessary because they demonstrated his mental state at the time

of the killing).

    Moreover, the judge provided the jury a limiting instruction

to curtail any unfair prejudice to defendant.                 That the judge

provided that limiting instruction during the final jury charge,

as opposed to at the time of Karen's testimony, is not clearly

capable    of    producing   an    unjust      result.       See    R.    2:10-2.

Accordingly, the record fails to reflect any prejudicial error,

and we affirm on this issue.

                                       IV

    Defendant next argues the trial court incorrectly applied

aggravating factor two under N.J.S.A. 2C:44-1(a), resulting in an

excessive sentence.      He contends the medical examiner testified

Sara died of one wound — her "sliced" aorta — and the stab wound

to her stomach would only have caused death had it been left

untreated and become infected.         Moreover, defendant asserts that,

contrary    to    the   trial     judge's      assertion,     Sara       was   not

"substantially     incapable      of   exercising        normal    or    physical



                                       13                                 A-2754-15T2
resistance."       See N.J.S.A. 2C:44-1(a)(2).           Defendant's arguments

lack persuasion.

       "The critical focus of the appellate power to review and

correct sentences is on whether the basic sentencing determination

of the lower court was clearly mistaken."              State v. Jarbath, 114

N.J.    394,    401   (1989)    (internal    quotation    marks    and   citation

omitted).       Under N.J.S.A. 2C:44-1(a)(2), a court must consider

               [t]he   gravity  and   seriousness  of   harm
               inflicted on the victim, including whether or
               not the defendant knew or reasonably should
               have known that the victim of the offense was
               particularly vulnerable or incapable of
               resistance due to advanced age, ill-health,
               or extreme youth, or was for any other reason
               substantially incapable of exercising normal
               physical or mental power of resistance.

       Defendant stabbed Sara seven times, injuring her lung, aorta,

abdomen, hip, thigh, as well as causing defensive wounds across

her arms.      The injury to her aorta alone would have caused Sara's

death; however, defendant continued to stab her numerous other

times.    Those facts demonstrate the gravity of the harm defendant

caused.        Moreover,   as    the   trial   judge   found,     defendant    was

significantly younger and larger, both in height and weight, than

Sara.     In fact, the judge noted, defendant "is not a small man.

The pre-sentence report would indicate he is five-seven and weighs

242 pounds.        At the time of the offense, he was in his mid-

twenties. . . . [In contrast, Sara] stood at five three, was fifty

                                        14                                A-2754-15T2
years of age" and had recently "lost a substantial amount of

weight."    Therefore, the record supports the judge's findings, and

the judge did not abuse his discretion in applying aggravating

factor two.      We affirm the sixty-year NERA sentence.

                                         V

     Defendant next argues the trial judge ordered him to pay

restitution      to    the    victims   without   making      adequate    factual

findings.     We agree.

     A "court shall sentence a defendant to pay restitution in

addition to a sentence of imprisonment" if: "(1) [T]he victim, or

in the case of a homicide, the nearest relative of the victim,

suffered a loss; and (2) [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).    The amount of restitution may not exceed the victim's

loss. N.J.S.A. 2C:43-3; State v. Newman, 132 N.J. 159, 167 (1993).

     Before a court imposes restitution, it must make the required

findings    under     N.J.S.A.    2C:44-2(b),     and   it    must    place     those

findings and reasons on the record.             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    the    defendant's    ability    to    pay.      State       v.

McLaughlin, 310 N.J. Super. 242, 263-65 (App. Div. 1998); State

v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994).

                                        15                                    A-2754-15T2
      Here, the trial judge declined to hold a hearing regarding

restitution.    He relied on representations from the Victims of

Crime Compensation Office (VCCO) in making his determination that

defendant owed $6510 in restitution to satisfy expenses related

to Sara's death and $2400 relative to Karen's injuries.

      Importantly, however, the trial judge failed to consider

defendant's ability to pay the restitution award.                In fact, he

explicitly      stated:   "The        Court,        certainly,      questions

ultimately . . . defendant's     ability       to     make   that     payment;

nonetheless, that's imposed."        As such, the trial judge failed to

make a determination that "defendant is able to pay or, given a

fair opportunity, will be able to pay restitution."                   N.J.S.A.

2C:44-2(b)(2); see e.g., State v. Pessolano, 343 N.J. Super. 464,

479 (App. Div. 2001) (remanding for a restitution hearing because

"the judge held no hearing and made no comments during sentencing

about defendant's financial status or ability to pay"); State v.

Scribner, 298 N.J. Super. 366, 372 (App. Div. 1997) ("In order to

impose restitution, a factual basis must exist and there must be

an   explicit   consideration   of    defendant's      ability   to    pay.").

Therefore, because the trial judge failed to consider defendant's

ability to pay, we remand for a restitution hearing.




                                     16                                A-2754-15T2
                                    VI

     Finally, in his pro se brief, defendant argues the "prosecutor

committed misconduct when she openly vouched for the credibility

of [Karen]" during summation.      He further contends the prosecutor

perjured   herself,   and   was   biased   "because   she   was   a    female

representing two female victims."          Defendant's arguments lack

sufficient merit to warrant discussion in a written opinion.                 R.

2:11-3(e)(2).

     The judgment of conviction is affirmed except as to the

restitution ordered, and the matter is remanded for a restitution

hearing.

     Affirmed in part, and vacated and remanded in part.




                                   17                                 A-2754-15T2
