Opinion
DOCKET NO. A-0822-11T3
10-01-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TAQUAN K. RANGE, a/k/a NYEEM RANGE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Mr. Burke, and Dit Mosco, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-03-00083. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Mr. Burke, and Dit Mosco, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by GRALL, P.J.A.D.
This appeal and another decided today, No. A-0949-11, concern the trial of two codefendants, Taquan K. Range and Ezekiel Snyder. Range and Snyder were charged in a single indictment with crimes committed during a nighttime invasion of an apartment in Warren County on January 29, 2008. The residents — a mother and her three-year old and seven-month old sons — were home when these codefendants and a third man, who was identified as their unknown conspirator in the indictment, entered the apartment. This opinion addresses Range's appeal.
The jury found both codefendants guilty as charged in a superseding indictment, which was issued as a consequence of a successful motion to dismiss the initial indictment. Specifically, the jury found both codefendants guilty of second-degree conspiracy, N.J.S.A. 2C:5-2, to commit burglary, N.J.S.A. 2C:18-2, and robbery, N.J.S.A. 2C:15-1; second-degree burglary while armed, N.J.S.A. 2C:18-2; and first-degree robbery while armed, N.J.S.A. 2C:15-1a(1).
In addition, the jury found Range guilty of the crimes with which he, but not Snyder, was charged: third-degree terroristic threats, N.J.S.A. 2C:12-3b; two counts of first-degree aggravated sexual assault while armed with and threatening use of a weapon — one by digital penetration and one by fellatio, N.J.S.A. 2C:14-2a(4); third-degree aggravated criminal sexual contact while armed with and threatening use of a weapon, N.J.S.A. 2C:14-3a; second-degree possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a; second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4).
The Legislature amended N.J.S.A. 2C:39-5 to elevate the crime of possessing a handgun without first having obtained a permit from a crime of the third to the second degree effective January 13, 2008. L. 2007, c. 284, § 1.
For reasons stated in an amended written opinion dated March 29, 2011, the judge denied defendants' motion for judgment of acquittal and a new trial. The judge sentenced defendants on August 11, 2011.
Range's aggregate sentence is a twenty-year term of imprisonment subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge did not merge any of Range's convictions. He imposed concurrent terms of imprisonment on each conviction as follows: first-degree robbery and two first-degree aggravated sexual assaults, twenty years subject to NERA; second-degree conspiracy to commit burglary and robbery, second-degree burglary, possession of a firearm with an unlawful purpose and possession of a handgun without a permit, seven years subject to NERA; third-degree terroristic threats and criminal sexual contact, four years; and fourth-degree aggravated assault, one year. In addition, the judge imposed the following financial obligations: restitution, one-half of $3480; VCCB assessment of $1000 pursuant to N.J.S.A. 2C:43-3.1, $100 per conviction; a SNSF assessment of $7500 pursuant to N.J.S.A. 2C:43-3.2, which should, at $75 per conviction, be $750; and a $30 LEOTEF penalty pursuant to N.J.S.A. 2C:43-3.3. The judgment also states Range's obligation, as a sex-offender, with respect to registration, community notification, address verification, internet posting and community supervision.
The evidence presented at trial can be summarized as follows. On the night of January 28, 2009, C.S., the girlfriend of Snyder's friend, drove Snyder, Range and a third man whom she did not know, to the neighborhood of the apartment they invaded. C.S. had known Snyder, to her "Bam Bam," for about a week, and she had met Range through Snyder. Snyder had asked C.S. to give them a ride to get "smoke." On the way, C.S. learned that they intended to get marijuana from "Sammy" by "beat[ing] him for it," by which C.S. meant taking it.
Earlier that day C.S. had taken Snyder and three different men, one the brother of her boyfriend, to the same area. C.S. thought the men were going to visit her boyfriend's sister, who lived there. On that trip, she parked near the apartment later invaded, which was across the street from Sammy's house. C.S. waited in the car. On the second trip, C.S. parked where Snyder directed her to park, which was around the corner from Sammy's and the apartment invaded. Again, C.S. waited in the car and did not see where the men went.
The woman whose apartment was invaded was dressed for bed and waiting for her three-year old to fall asleep when she heard pounding on the front door of her two story apartment. Her seven-month old was already asleep upstairs. Unable to see through the door's peephole, she opened the door.
The man at the door had the "fuzz"-trimmed hood of his coat pulled up and around his face. He asked for Sammy. Although the woman told him there was no one named Sammy there, he persisted. When she tried to close the door, he blocked her effort, pushed it open and entered.
Two other men, each wearing a black ski mask, followed him in. Their masks had no openings other than eye slits, a triangle in the area of the nose and a slit at the mouth. The third man to enter, the second of the two masked men, was carrying a gun. The woman was never able to identify any of the intruders.
During her testimony at trial, the woman described the action of the three men inside her home, referring to them as the man without the mask who entered first, the masked man without the gun and the masked man with the gun. In short, she recounted the events from the time the men entered until they left and she fled with her children to call for help.
Upon entering, the masked man with the gun took her cell phone. Using the gun to threaten her and striking her with it when she tried to look at his eyes, he repeatedly asked about Sammy. While that was going on, her three-year old came downstairs and was taken to another room by the unmasked man. The masked man with the gun then took her upstairs, gun to her back. The other masked man followed.
In her bedroom, the masked men dumped out the contents of her purse and took a twenty dollar bill, the only money she had. They also took a necklace and a ring with her children's birthstones.
Threatening to harm the woman or her children if she did not cooperate, the masked man with the gun directed her to take off her pajamas and both masked men squeezed her breasts. The unmasked man had been with her son. Although her testimony is not clear on the point, she indicated that her three-year old came into the room and said he needed his mother. One of the men, who had the gun at that point, held the gun to or pointed it at the child's head before the child was moved back to his room.
Thereafter, the masked man with the gun regained possession. Holding the gun to the woman's vagina, he threatened to shoot. Then, he digitally penetrated the woman, put on a condom and forced her mouth onto his penis. Until she did what he wanted, the masked man with the gun struck the woman with it several times and held it to her neck. Although the others urged him to stop wasting time and leave, he persisted.
When that assault ended, the men bound the unclothed woman using a charger wire and left her sitting on her bedroom floor. They then went downstairs. The woman listened to them moving around for a time and after she heard the door close and the quiet that followed, her three-year old came to her and helped her get untied.
Once free, the woman dressed, went downstairs to make sure it was safe and retrieved her children. She had to leave to call for help because the cell phone taken was the only phone she had.
Subsequently, the police interviewed and photographed the woman's injuries and arranged for forensic examination by a Sexual Assault Nurse Examiner for the Sexual Assault Response Team. The nurse found red marks on the woman's neck, wrists and the top of her head, and the photographs depicted an area of slight swelling and discoloration on her forehead. Samples of the woman's hair were also taken.
The State's theory of the case was that Range was the masked man with the gun. With respect to Snyder, the State submitted that he could have been either the second masked man or the unmasked man.
The State's case against Range was based on physical evidence combined with the testimony of C.S. and the woman who was his victim. According to C.S., when Range and the others returned to her car after being gone for about fifteen minutes, Range, using coarser language, announced that a woman had performed fellatio on him. That declaration was supported by a used condom holding Range's DNA and a hair that matched the hair taken from the woman, which the police found near the spot where Snyder told C.S. to park that night.
There was other physical evidence. During the victim's testimony she listed things taken from her home — along with her cell phone, the $20 bill and her jewelry, she mentioned DVDs and snacks for the children that she kept in the drawer of a hutch. The snacks included individually packaged oatmeal cookies, and near the spot where C.S. parked, the police found an individually packaged oatmeal cookie. C.S. recalled the men having cookies like that when they returned to the car because she ate one. In addition, during a subsequent search of Range's duffle bag, the police found a ski mask that matched the victim's description of the masks worn by two of the intruders. That mask held a hair that matched a sample taken from Range. The gun was never recovered.
The State's case against Range was dependent on the testimony of C.S. As previously noted, she testified about driving Snyder to the street where the invaded apartment is located earlier the same day. And she testified that when Snyder, Range and the other man returned to her car, they were laughing about a little boy who cried because he was scared for his mother. She also testified that Snyder remarked that the men might have gone to the "wrong" house.
The State presented some evidence tending to support an inference that Snyder, Range and their companion intended to go to Sammy's house to take marijuana as C.S. claimed. "Sammy's" mother testified for the State and said that three young men had come to her on January 29, 2008, and asked for her son Sammy. By her account, Sammy went outside to speak with them, but she did not know and could not identify any of the young men. Sammy was deceased at the time of trial.
The State was permitted to introduce a photograph of the victim's children taken before the incident. In addition, the victim testified that while she was held in her bedroom she heard her baby crying and her older son telling his brother that everything would be okay.
On redirect, the prosecutor asked the victim how she "dealt with what happened on January 29, 2008, [before she] went to the grand jury[] with [her] son Ethan?" She responded, "Counseling." There was no objection to that question or to the prosecutor's follow-up:
Q. And how was, how were you able, or how did you handle dealing with it during that timeframe?
A. Family. I stayed with family a lot. My kids.
Q. Did you give much thought about the details of what happened on January 29th during that timeframe?
A. I was trying not to.
Q. How about the second time you testified in front of the Warren County Grand Jury on March 1, 2009. Did anybody show you any documents about what you had said before?
A. No.
Q. Did you ever read any of the, either grand jury transcripts?
A. No.
Q. When you testified?
A. No.
Q. Did you read them before today?
A. No.
Q. Or yesterday?
A. No.
To address any question in the jurors' mind about the multiple grand jury proceedings, the judge gave this instruction: "The original indictment against the defendants was superseded by a new indictment. The fact that a superseding indictment was obtained should not influence you in determining the credibility of [the victim], okay. That had nothing to do with her."
Neither defendant presented any evidence or witnesses.
On the State's motion, defendants were prohibited from bringing out any information identifying the misdemeanors to which C.S. pled guilty — possession of crack cocaine and corrupting a minor. Defendants' respective attorneys were, however, permitted to elicit C.S.'s admission to being convicted of two charges in Pennsylvania on September 11, 2007, for which she was sentenced to a term of probation that did not end until March 11, 2009. Defense counsel were also permitted to question C.S. about her compliance with the conditions of her release on probation and, in that context, elicited an admission that C.S. smoked marijuana, which was a violation. C.S. said her probation officer knew about her violation. She admitted that when she spoke to the police in New Jersey about this case, she did not know what action her probation officer would take to address her probation violation.
In addition to the foregoing impeachment of C.S., defense counsel questioned her about numerous inconsistencies between the out-of-court statements she made and her trial testimony. She repeatedly admitted to lying prior to trial.
I
Range raises these issues on appeal:
I. THE TRIAL COURT ABUSED ITS DISCRETION, AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL, WHEN IT ALLOWED THE STATE TO INTRODUCE A PHOTOGRAPH OF THE VICTIM'S CHILDREN INTO EVIDENCE THAT HAD NO PROBATIVE VALUE.
II. THE TRIAL COURT'S DECISION TO RESTRICT DEFENSE COUNSEL'S CROSS-EXAMINATION OF A KEY PROSECUTION WITNESS BY "SANITIZING" EVIDENCE OF HER PREVIOUS CRIMINAL CONVICTIONS, CONSTITUTED AN ABUSE OF DISCRETION AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM AND TO A FAIR TRIAL.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PROHIBITED DEFENSE COUNSEL FROM ESTABLISHING THAT THE VICTIM WAS ALTERING HER TESTIMONY ON THE SOURCE OF INJURIES TO HER HEAD BECAUSE SHE WAS MOTIVATED TO COVER UP THE FACT SHE WAS ASSAULTED BY HER BOYFRIEND AROUND THE TIME OF THE INCIDENT AND BY GIVING AN UNNECESSARY
CURATIVE INSTRUCTION BOOSTING THE VICTIM'S CREDIBILITY.
IV. DEFENDANT'S CONVICTIONS ON COUNTS EIGHT, NINE AND TEN, MUST BE REVERSED BECAUSE THE TRIAL COURT INSTRUCTED THE JURY IT COULD FIND DEFENDANT GUILTY IF THE OBJECT HE POSSESSED MERELY APPEARED TO BE [A] FIREARM, RATHER THAN INSTRUCTING THE JURY IT MUST FIND BEYOND A REASONABLE [DOUBT] THAT DEFENDANT POSSESSED AN ACTUAL FIREARM.
V. DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION; IN ADDITION THE IMPOSITION OF RESTITUTION AND FINES WITHOUT A HEARING, REQUIRES THE SENTENCE BE VACATED AND THE CASE RETURNED TO THE TRIAL COURT FOR A NEW SENTENCE HEARING.
We conclude that error in the jury instruction on the meaning of "firearm" in the context of the crimes of possession of a firearm with an unlawful purpose and possession of a handgun without a permit to carry, requires reversal of those convictions. In addition, for reasons stated in Part IV of this opinion, we remand for merger of several of Range's convictions, a hearing on restitution, and amendment of the fines, penalties and assessments to vacate those attributable to the reversed and merged convictions. Otherwise, we affirm Range's convictions and sentence.
II
A
Range and Snyder claim several errors in the trial court's evidentiary rulings. All of them involve the trial court's application of N.J.R.E. 403, which permits exclusion of relevant evidence when "its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues or misleading the jury . . . ."
"[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997) and applying that standard in a case involving application of N.J.R.E. 404(b)); accord State v. Feaster, 156 N.J. 1, 82 (1998) (applying the standard in a case involving N.J.R.E. 403). That deference is withheld if the trial court has misapplied the law to the evidence in question, in which case an appellate court reviews the question of admissibility anew. See State v. Rose, 206 N.J. 141, 158 (2011) (so noting in a case involving the applicability of N.J.R.E. 404(b)). If error is found and an objection was raised at the time, then reversal is warranted if the error leaves the reviewing court with uncertainty about whether the error contributed to the defendant's conviction. State v. Sanchez, 129 N.J. 261, 278 (1992) .
We turn to apply those principles in reviewing the objections raised on this appeal.
B
The defendants both claim error in the court's limitation of their cross-examination of C.S. about the crimes underlying her prior convictions — possessing crack cocaine and corrupting a minor in Pennsylvania. As the trial court made clear in its written decision addressing defendants' motion for a new trial, the determination to "sanitize" C.S.'s convictions over defendants' objections — that is, to eliminate reference to the crimes underlying C.S.'s prior convictions, State v. Brunson, 132 N.J. 377, 387-93 (1993) - was based on N.J.R.E. 403. The trial court recognized that Brunson did not require sanitization because its rule applies only where the witness to be impeached is the defendant in a criminal case and one or more of the defendant's prior convictions is for a crime similar to one for which the defendant is being tried. Ibid.
The difficulty is that the trial court did not identify the basis for precluding cross-examination of C.S. about the crimes underlying her prior convictions. For that reason, we cannot defer to the determination. The rationale for sanitization of information about a testifying-defendant's similar prior convictions is obvious — the inherent risk of the jury returning a guilty verdict based on its determination that the defendant has a propensity to commit crimes of the sort for which the defendant is on trial. State v. Hamilton, 193 N.J. 255, 265-66 (2008) .
Quite obviously, there is no such risk where the prior convictions are those of a witness who is not a defendant in the case. Nevertheless, the Court has recognized that there may be valid reasons for sanitizing prior convictions of a testifying-defendant that are not similar to the crime at issue through an application of N.J.R.E. 403. Id. at 268-69. And we see no basis for limiting the general applicability of N.J.R.E. 403 to bar sanitization of the prior conviction of a State's witness in a criminal trial where a proper showing of prejudice is made.
In this case, however, we are unable to discern a basis for sanitization pursuant to N.J.R.E. 403. Although the State does not concede that there was no valid reason, it does not offer a justification under N.J.R.E. 403.
For the foregoing reasons, we assume, without deciding, that the "sanitization" was error. Despite that assumption of error, the error was harmless, in that it leaves no reason for uncertainty about whether the verdict would have been the same if defense counsel had been permitted to introduce a judgment reflecting, or question C.S. about, the crimes underlying her recent convictions. The cross-examination on C.S.'s prior convictions was vigorous, to say the least, and it effectively demonstrated C.S.'s lack of concern about compliance with the law, including the conditions governing her release on probation.
Moreover, defense counsel managed to elicit an admission from C.S. tending to show her motive for cooperating with law enforcement — her knowledge that her probation officer was aware of her violation and had not yet decided what action would be taken to address it.
Defendants have presented no argument on what could have been accomplished, but was not accomplished, if information about the crimes underlying C.S.'s convictions had been admitted. Accordingly, we cannot conclude that their right to cross-examination was impermissibly limited in an unreasonable manner that raises a doubt, let alone reasonable doubt, about the conviction. State v. Castagna, 187 N.J. 293, 312-13 (2006); see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967).
c
We agree with defendants that the pictures of the children who were present during the invasion had little tendency in reason to prove or disprove a fact of consequence, and therefore the pictures have limited probative value. N.J.R.E. 401, 402, 403. There was no dispute that the victim had children who were home during the events. Even if one of those facts were in dispute, the studio-style photograph of the boys would not have any tendency to prove either.
As defendants argue, the photograph of the smiling little boy and his baby brother had some capacity to evoke an emotional reaction prejudicial to defendants. Nevertheless, we are confident that the same emotions would be evoked by the admissible and highly relevant testimony the mother gave about a man holding a gun to her three-year old son's head and coercing her to cooperate by threatening to harm her children. Her admissible testimony about how she managed to untie herself with the little boy's help had the same capacity. In short, the admissible evidence of the children's presence and the use the men made of them was inherently disturbing in a way that that could not be appreciably enhanced by seeing a photograph depicting the children. Beyond any doubt, the error was harmless.
D
Range contends that the court erred by limiting his attorney's cross-examination about the injuries the victim sustained at the hand of her boyfriend a month before this criminal episode. He further contends that the court's instructing the jury on the victim's lack of responsibility for the repetitive proceedings before the grand jury improperly "boosted" her credibility. Having considered those claims in light of the record in the context of this trial, we are convinced that the arguments presented in support of these claims have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e) (2). Substantially for the reasons stated by the trial court in its written decision of March 29, 2011, we affirm the court's decision to limit cross-examination as it did.
III
Range argues that the trial court's instruction to the jury on crimes that required proof of his possession or use of a firearm or a handgun, as those terms are defined in N.J.S.A. 2C:39-1f and N.J.S.A. 2C:39-1k, must be reversed because the court directed the jury that they could find him guilty of those crimes if they determined that Range possessed "what appeared to be" a firearm or handgun. With respect to the crimes defined in N.J.S.A. 2C:39-4a and N.J.S.A. 2C:39-5b, Range's attorney-brought that error in the instruction on the weapons offenses to the trial court's attention immediately after the jurors left the courtroom to deliberate. Defense counsel did not claim error in the aggravated assault charge at that time, most likely because it does not include that error.
We agree that Range's convictions for possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a, and possession of a handgun without a permit to carry, N.J.S.A. 2C:39-5b, must be reversed because of that error.
"[F]ailure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel." State v. Federico, 103 N.J. 169, 176 (1986). Without a proper instruction on every element, it simply cannot be said that the jury has determined that the State proved "each and every material fact that makes up the crime" beyond a reasonable doubt. State v. Ragland, 105 N.J. 189, 195 (1986). The right to a "trial by jury to which [a defendant] is entitled" requires that a jury "find that the State has proved each and every material element of the crime beyond a reasonable doubt." Id. at 193-94.
There is no question that any reference to a firearm or handgun in chapter 39 means a firearm or handgun as defined in the first section of chapter 39, N.J.S.A. 2C:39-1. N.J.S.A. 2C:39-1 provides that the definitions found therein "apply to this chapter and to chapter 58." Ibid. The definitions of firearm and handgun simply do not include an object "that appeared to be" a handgun or a firearm. In short, the law does not permit a conviction for a crime defined in chapter 39 based on a jury verdict returned on that basis. N.J.S.A. 2C:39-1f, k; but cf. N.J.S.A. 2C:39-1v (providing that the term "'imitation firearm' means an object or device reasonably capable of being mistaken for a firearm").
It is true that the Supreme Court has concluded that the fact that an instrument is a firearm within the meaning of N.J.S.A. 2C:39-1f may be inferred from other evidence about the instrument. See State v. Gantt, 101 N.J. 573 584-85 (1986) (agreeing with the conclusion of this court in State v. Ortiz, 187 N.J. Super. 44, 49-50 (App. Div. 1982), that a fake or toy gun is not a firearm within the meaning of section 2C:39-1(f) and it is the instrument's design to fire a projectile that controls). That, however, is a different thing than directing the jury that it may return a guilty verdict if it determines that defendant possessed or used an object that "appeared to be" a "firearm" or "handgun." The question for the jury is whether the evidence, and the reasonable inferences the evidence permits, establish that the object is "a firearm" or "handgun."
Gantt does not authorize alteration of the definition of firearm or handgun. The question in that case was the evidence the State had to produce to establish that an instrument is a "firearm" within the meaning of N.J.S.A. 2C:39-1f. Here the trial court's obligation was to direct the jurors on what these essential elements — firearm or handgun - mean in the context of N.J.S.A. 2C:39-4a and N.J.S.A. 2C:39-5b. In other words, the trial court had to explain to the jury what the State had to prove, not how the State could prove it, which a court may do after giving the jury an instruction on the meaning of the term.
Because the jury was misdirected on an essential element of both crimes, Range's convictions for violating N.J.S.A. 2C:39-4a (count eight) and N.J.S.A. 2C:39-5b (count nine) must be vacated.
As previously noted, the jury instruction pertinent to Range's conviction for aggravated assault as defined in N.J.S.A. 2C:12-1b(4) did not include the erroneous reference to a firearm "or what appeared to be a firearm." Moreover, in that instruction, the court referred the jurors to an adequate definition of the term "firearm" it had previously given. Accordingly, we reject Range's claim of error, raised for the first time on appeal, that the jury charge on aggravated assault warrants reversal of that conviction.
IV
Range contends that his aggregate sentence to a term of imprisonment for twenty years is excessive. We have considered the arguments Range offers to establish that claim and determined that they have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e) (2). The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and, questions of merger aside, the concurrent sentences of incarceration imposed are neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Defendant raises a valid objection to the imposition of restitution without consideration of his ability to pay. Accordingly, we remand for a hearing on that issue because nothing in the record permits us to conclude that the court took account of Range's ability to pay. See generally State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.), certif. denied, 170 N.J. 210 (2001); State v. R.V., 280 N.J. Super. 118, 121-22 (App. Div. 1995).
There are other matters the trial court must address on remand. Although the issue is not raised on appeal, the court did not consider merger of Range's convictions. There is no question that Range's conviction for conspiracy must be merged with his convictions for the completed crimes that were the only objects of the conspiracy charged in the indictment. State v. Hardison, 99 N.J. 379, 381-83, 391 (1985). Moreover, because the jury did not find a purpose broader than the crimes for which Range was convicted, his conviction for possession of a firearm with the purpose of using it unlawfully against the person or property of another must be merged with his convictions for robbery and burglary while armed. State v. Diaz, 144 N.J. 628, 636 (1996).
Affirmed in part, reversed in part and remanded for further proceedings. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION