The opinion
NOT FOR PUBLICATION WITHOUT THE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-5041-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SYLVIA WILKERSON,
Defendant-Appellant.
________________________
Argued September 23, 2021 – Decided October 6, 2021
Before Judges Alvarez and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-12-0209-
S.
Matthew W. Reisig argued the cause for appellant
(Reisig Criminal Defense & DWI Law, LLC, attorneys;
Matthew W. Reisig, on the brief).
Steven Cuttonaro, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Steven Cuttonaro, of
counsel and on the brief).
PER CURIAM
Defendant Sylvia Wilkerson appeals from the provisions of the June 5,
2019 judgment of conviction requiring her to: (1) pay $272,223.53 in restitution
"[a]t a rate of $1,000.00 per month"; and (2) "[o]btain employment” as a
condition of probation. We affirm.
On December 12, 2017, a State grand jury returned a three-count
indictment charging defendant with second-degree theft by deception, N.J.S.A.
2C:20-4(a) (count one); second-degree theft by unlawful taking, N.J.S.A. 2C:20-
3(a) (count two); and fourth-degree forgery, N.J.S.A. 2C:21-1(a)(2). In support
of these charges, the State alleged that after defendant's father passed away in
September 2004, she stole $109,716 in Social Security benefits, $147,312.37 in
Second Injury Fund benefits, and $15,195.16 in Joint Industry Pension Board
benefits paid to her deceased father from shortly after his death until the theft
was discovered in early 2017. Defendant accomplished the theft by changing
the address on her late father's bank account, where the monies were deposited
each month, to her own address. Defendant then used an ATM machine to make
hundreds of withdrawals from the account. Defendant also submitted "annual
recertification form[s]" allegedly prepared by her father attesting that he was
still entitled to payments from the victims.
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On July 2, 2018, defendant pled guilty under count one of the indictment
to an amended charge of third-degree theft by deception. As part of the
negotiated plea agreement, the State stated it would ask the court to: dismiss
the two remaining counts of the indictment; sentence defendant to 180 days in
jail as a condition of probation; and order her to pay $272,223.53 in restitution.
Defendant admitted during the plea colloquy that she was aware she was not
entitled to any of the benefits deposited into her father's account after his death.
Defendant did not dispute the total amount of restitution sought by the
State, but requested an ability to pay hearing. Judge Mirtha Ospina granted this
request and conducted a three-day hearing at which defendant and her forty-
eight-year-old son were the only witnesses.
Defendant stated she was then sixty-eight years old and unemployed. She
previously worked as an assistant trader in the banking industry and was last
employed as a shipping clerk in 2017. After she pled guilty in July 2018,
defendant was hired by a staffing company, which rescinded the offer after a
criminal background check. Defendant made no further efforts to seek
employment.
Defendant testified she had suffered from a number of medical conditions
for many years, but the record shows that these conditions are controlled by
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medications and did not prevent defendant from holding employment in the past.
Most recently, defendant had knee surgery to treat injuries sustained in a 2017
car accident. She filed a civil suit in connection with that accident and hoped to
receive an award in her favor at some point in the future. 1
On direct examination, defendant stated her primary sources of income
were Social Security retirement benefits of $1372 per month and a monthly
$90.25 pension payment. On cross-examination, however, she admitted her son,
who was the joint owner with her of the home in which they both lived, also
gave her a $1600 "allowance" each month.
Defendant only supplied federal income tax information for one year,
2017. But, based upon her testimony, she had access to approximately $3062
each month. Defendant presented just one month of bank records that showed
she had approximately $1400 in her two accounts at the time of the hearing.
As for her monthly expenses, defendant stated that the monthly mortgage
on the home was $1398. It is not clear from the record whether her son, as the
home's co-owner, paid a portion of that expense. Defendant's average monthly
gas and electric bill was approximately $200, and she stated she paid $123 for
1
Defendant's attorney stated at the hearing that "any money that's derived by
way of a settlement or verdict [in the personal injury action] would be turned
over."
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her cellphone, $30 for life insurance, and $80 toward her nominal credit card
balances each month.
Significantly, defendant testified she had reduced her monthly budget by
over $1000 after the entry of her guilty plea. Previously, defendant paid at least
$580 a month for a BMW lease, $300 to $400 for the monthly cost of insurance
on the BMW, and $223.42 each month for cable. 2 Thus, defendant had freed up
at least $1000 in her budget by the time of the ability to pay hearing.
Defendant testified she no longer had any of the $272,223 she stole from
the three institutions. She denied giving these funds to anyone else.
Although defendant initially claimed she had no other sources of income,
defendant began receiving regular checks from Progressive Garden State
Insurance (Progressive) shortly after she pled guilty to cover income lost as a
result of defendant's car accident. Eventually, these checks totaled $10,000.
Defendant testified the payments ended in December 2018, but the State
produced an additional check Progressive sent to defendant in March 2019.
Defendant's house was valued at $243,700, and she owed $128,965.13 on
the mortgage. Defendant stated she applied for a reverse mortgage, but the bank
denied her application because she did not "have enough equity" in the property.
2
The cable bill was placed in defendant's son's name after she pled guilty.
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On cross-examination, however, the State produced a record stating the bank
denied defendant's application because it was incomplete.
Defendant's son briefly testified at the hearing. He stated he held two jobs
and earned $71,000 per year. He also testified that he attempted to obtain a
second mortgage in April 2019, but was unable to obtain approval.
Defendant asked that the court order her to pay no more than the amount
of her $90.25 pension each month in restitution. The State argued that defendant
could afford at least $1000 per month based on her admission that she no longer
had the car and cable bills that she had previously been able to pay from the
monies available to her.
Following the hearing, Judge Ospina rendered a comprehensive oral
opinion and found that defendant had the ability to pay $1000 each month in
order to make restitution for the $272,223.53 she admitted stealing from the
three victims. Judge Ospina found that defendant's testimony that she lacked
the ability to pay more than $90.25 per month was simply not credible in view
of the fact that she had previously been able to pay at least $1000 per month for
a luxury car, automobile insurance, and cable bills that had now been eliminated
from her budget.
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The judge also determined that defendant and her son's testimony was not
credible because they each had an interest in minimizing defendant's assets in
an attempt to reduce her obligation. For example, the judge noted that other
than producing a month or two of current records, defendant did not supply
detailed information for the past six months that might have shed additional light
on her true financial status.
The judge further found that defendant incorrectly claimed she was unable
to obtain a reverse mortgage to obtain additional funds to pay restitution because
she did not have sufficient equity in her home to qualify for this program.
However, the evidence revealed defendant had over $100,000 in equity in the
home and that her application was denied because she did not complete the
required application forms.
Judge Ospina also concluded that defendant demonstrated a lack of good
faith by obtaining approximately $10,000 in benefits from Progressive and then
either spending or hiding this money instead of saving it in order to make a lump
sum payment toward whatever her restitution obligation might be. Defendant's
action in dissipating these funds also strengthened the judge's conclusion that
defendant likely hid a portion of the $272,223.53 she took from the victims.
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The judge ruled that defendant should pay full restitution in this case of
the entire amount taken between the date of her father's death and the discovery
of her scheme. The judge acknowledged that defendant was sixty-eight years
old and had health issues. However, she also observed that defendant had
previously been employed, had obtained a job offer that was rescinded following
a criminal background check, and then never sought another position. The judge
found that defendant was intelligent and had previously held positions of
responsibility. Noting that the probation department would be able to assist
defendant in finding an appropriate placement, the judge ordered defendant to
obtain employment.
After ruling on defendant's ability to pay restitution, Judge Ospina
sentenced defendant to five years of probation and fifty hours of community
service. The judge also imposed additional fines and penalties that are not
challenged on appeal.
On appeal, defendant presents the following contention:
Point I
THE TRIAL COURT ABUSED ITS DISCRETION IN
ORDERING A 68-YEAR-OLD UNEMPLOYED
DEFENDANT CONVICTED OF THEFT WHO
SUFFERS FROM NUMEROUS MEDICAL
CONDITIONS TO PAY FULL RESTITUTION IN
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THE AMOUNT OF $272,223.53 FOLLOWING A
THREE-DAY ABILITY TO PAY HEARING.
The principles governing our review are well established. Pursuant to
N.J.S.A. 2C:44-2, a court shall "sentence a defendant to pay restitution . . . if (1)
[t]he 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)(1) and
(2). When establishing the restitution amount and repayment schedule, "the
court shall take into account all financial resources of the defendant, including
the defendant's likely future earnings, and shall set the amount of restitution so
as to provide the victim with the fullest compensation for loss that is consistent
with the defendant's ability to pay." N.J.S.A. 2C:44-2(c)(2). "If the court
decides that . . . restitution is appropriate, the court has the authority to devise
an installment plan for payment." State v. Newman, 132 N.J. 159, 171 (1993)
(citing N.J.S.A. 2C:46-1(a)).
If "there is a good faith dispute over the amount of the loss or defendant's
ability to pay, the trial court[,] as a matter of defendant's due process entitlement,
must hold a hearing on the issue, the character of which should be appropriate
to the nature of the question presented." State v. Jamiolkoski, 272 N.J. Super.
326, 329 (App. Div. 1994). "Due process is satisfied by affording the defendant
a hearing on the amount of restitution . . . and where there is a factual basis in
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the record to support the court's determination of the amount of restitution."
State v. Harris, 70 N.J. 586, 598-99 (1976). "The determination of the amount
of restitution [if set in compliance with these principles] should be accepted
except in the case of abuse of discretion." Id. at 599 (citations omitted).
A trial court's factual findings following an evidentiary hearing are owed
deference by the appellate court "so long as those findings are 'supported by
sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243
(2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Deference should
also be given "to those findings of the trial judge which are substantially
influenced by his opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy." Id. at 244 (quoting State v.
Johnson, 42 N.J. 146, 161 (1964)). "A trial court's findings should be disturbed
only if they are so clearly mistaken 'that the interests of justice demand
intervention and correction.'" Ibid. (citing Johnson, 42 N.J. at 162).
Applying these principles, we discern no basis for disturbing Judge
Ospina's well-reasoned determination that defendant had the ability to pay
$1000 per month toward her restitution obligation of $272,223.53. As the judge
found, defendant had eliminated over $1000 in expenses for a BMW, the
insurance on that vehicle, and a cable bill that she had previously been able to
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pay as part of her monthly budget. Thus, these funds were obviously available
to assist defendant in compensating the victims for their losses.
In reaching this conclusion, the judge found that defendant's claim that
she could only pay $90 per month was simply not credible. In explaining this
determination, the judge observed that defendant failed to supply information
concerning her complete financial picture, immediately dissipated
approximately $10,000 in lost income benefits that Progressive paid defendant
after her guilty plea, and provided incorrect information concerning the reason
for the denial of her reverse mortgage information. We defer to the judge's
credibility findings on these points. Locurto, 157 N.J. at 474.
Contrary to defendant's contentions on appeal, Judge Ospina fully
considered defendant's age and health in setting the amount of restitution and
ordering her to obtain employment as a condition of probation. As stated above,
defendant is able to pay $1000 per month in restitution from her current sources
of income. Moreover, the record fully supports the judge's conclusion that
defendant's health issues were of a long-standing nature and had not prevented
her from securing and holding employment in the past. In addition, the judge
directed the probation department to assist defendant in her job search.
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In sum, the judge did not misapply her discretion by requiring defendant
to pay restitution in monthly installments. Therefore, we affirm the June 5, 2019
order substantially for the reasons set forth by Judge Ospina in her oral decision.
Affirmed.
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