STATE OF NEW JERSEY VS. NICHOLAS MASCEÂ (16-01-0001, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1967-16T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
November 16, 2017
v. APPELLATE DIVISION
NICHOLAS MASCE,
Defendant-Respondent.
________________________________
Argued September 12, 2017 – Decided November 16, 2017
Before Judges Fisher, Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
No. 16-01-0001.
John A. Nicodemo, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General, attorney; Mr.
Nicodemo, of counsel and on the brief).
Jaime B. Herrera, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Ms. Herrera, of counsel and on the
brief).
The opinion of the court was delivered by
MOYNIHAN, J.S.C. (temporarily assigned).
The State of New Jersey appeals from the sentencing judge's
order denying its request to enter, as part of the plea
agreement reached between it and defendant, a civil consent
judgment for restitution due the victims of defendant's theft,
and from an order denying reconsideration. We agree with the
sentencing judge that he was without statutory authority to
enter the judgment and affirm.
Defendant pleaded guilty to an amended charge of third-
degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), admitting
he took $85,131.18 in benefits directly deposited in his
deceased mother's bank account after her death. The victims of
the theft were two pension funds and the United States Social
Security Administration.1 The State recommended that, as part of
the plea agreement, defendant pay restitution in the full amount
due all victims, a payment schedule be set through probation,
and the judge enter a civil consent judgment in favor of the
victims.
Judge Kevin T. Smith entered the plea but expressed
reservations about his ability to order the entry of a civil
consent judgment. Prior to sentencing the State argued,
inasmuch as N.J.S.A. 2C:44-2(f) provides that an order of
restitution imposed by a sentencing judge does not bar the
victim from seeking civil remedies, a sentencing judge is not
precluded from entering a civil consent judgment to prevent the
1
Defendant took funds deposited by the Social Security
Administration in the amount of $74,601 and by the two pension
funds – $6555.78 from one, $3974.40 from the other.
2 A-1967-16T1
victim's incurrence of further expense in pursuit of a civil
recovery. Defendant took no position.
Judge Smith, in a written opinion, rejected the State's
interpretation of N.J.S.A. 2C:44-2(f), holding that the
Legislature intended that civil remedies be pursued in a civil
court; the Legislature did not provide for recovery through the
criminal sentencing process. The judge also took issue with the
ethical propriety of requiring defendant to agree to a civil
consent judgment as part of a plea agreement. He concluded it
was "improper for the State to . . . threaten criminal
prosecution to get an upper hand in a civil matter," citing RPC
3.4(g). The State argued in a motion for reconsideration that
N.J.S.A. 2C:43-2(d) allowed "the court to . . . impose any . . .
civil penalty" conferred by law at sentencing. Judge Smith
again disagreed, ruling the penalties that may be imposed under
that statute are those provided in the New Jersey Code of
Criminal Justice (the Code), such as forfeiture of public office
and limitation on Internet access, but a civil consent judgment
was not included among those penalties.
On appeal, the State contends that the judge erred because
the Code "clearly sets forth authority for a sentencing court to
impose civil penalties at sentencing," and that a civil consent
judgment is "a lawful means" conferred by law to ensure
3 A-1967-16T1
remuneration of victims "above and beyond an order of
restitution." The State also submits the entry of a consent
judgment "raises no ethical considerations." Defendant counters
that the judge was without authority to enter the judgment
because a civil consent judgment "is a contractual agreement and
not a 'penalty.'"
In determining the propriety of entering civil consent
judgments in favor of crime victims at sentencing, it is
necessary to analyze the applicable statutory provisions. We
owe no deference to the sentencing judge's legal interpretation
of those statutes, a purely legal issue, and conduct our review
de novo. State v. Buckley, 216 N.J. 249, 260-61 (2015);
Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
"Our task in statutory interpretation is to determine and
effectuate the Legislature's intent." Bosland v. Warnock Dodge,
Inc., 197 N.J. 543, 553 (2009). The Supreme Court recognized
the statutory directive we utilize to explicate a legislative
enactment:
In the construction of the laws and statutes
of this state, both civil and criminal,
words and phrases shall be read and
construed with their context, and shall,
unless inconsistent with the manifest intent
of the legislature or unless another or
different meaning is expressly indicated, be
given their generally accepted meaning,
4 A-1967-16T1
according to the approved usage of the
language.
[State v. Gandhi, 201 N.J. 161, 177 (2010)
(quoting N.J.S.A. 1:1-1).]
"[W]e look first to the plain language of the statute, seeking
further guidance only to the extent that the Legislature's
intent cannot be derived from the words that it has chosen."
Pizzullo v. New Jersey Mfrs. Ins. Co., 196 N.J. 251, 264 (2008).
If the statutory language is ambiguous, we turn to extrinsic
evidence from "a variety of sources . . . [c]entral among
[which] is a statute's legislative history." Richardson v. Bd.
of Trs., P.F.R.S., 192 N.J. 189, 196 (2007).
Because there are a number of provisions in the Code that
apply to our analysis, we heed the Court's direction that
[s]tatutes must be read in their entirety;
each part or section should be construed in
connection with every other part or section
to provide a harmonious whole. When
reviewing two separate enactments, the Court
has an affirmative duty to reconcile them,
so as to give effect to both expressions of
the lawmakers' will. Statutes that deal
with the same matter or subject should be
read in pari materia and construed together
as a unitary and harmonious whole.
[In re Petition for Referendum on City of
Trenton Ordinance 09-02, 201 N.J. 349, 359
(2010) (citations omitted).]
Our analysis begins with the general principle that all
sentences imposed by a court for any offense must comport with
Chapter 43 of the Code, N.J.S.A. 2C:43-1 to -22. N.J.S.A.
5 A-1967-16T1
2C:43-2(a). Courts, unless compelled by the Code to impose
restitution,2 have the discretion to sentence a defendant to pay
restitution. N.J.S.A. 2C:43-2(b)(1), -2(b)(4), -3.
Courts cannot simply gauge the amount of restitution by a
victim's loss. Although the amount of restitution may not
exceed the amount of loss,3 N.J.S.A. 2C:43-3, "[i]n determining
the amount and method of payment of restitution, 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).
2
See, e.g., N.J.S.A. 2C:44-2(b) (requiring a court to order
restitution be paid by a defendant if the loss was incurred by
the victim of a homicide – or by a victim's relative – and the
defendant has the ability to pay, either at the time of
sentencing or, "given a fair opportunity," thereafter). See also
N.J.S.A. 2C:11-3c (mandating the court to order a person
convicted of murder to pay restitution to the victim's nearest
surviving relative); N.J.S.A. 2C:43-2.1 (mandating that a
defendant convicted of motor vehicle theft or unlawful taking be
ordered to pay restitution to the victim for any reasonable and
necessary expense incurred in recovering the vehicle, and for
the amount of damages sustained); N.J.S.A. 2C:43-3 (mandating
the court to order restitution if the victim is a department or
division of the State of New Jersey).
3
An exception exists for a defendant's failure to pay taxes to
the State.
6 A-1967-16T1
The distinction between restitution and civil remedies is
clear from the stated purposes of restitution, as noted by the
Supreme Court in State v. Harris, 70 N.J. 586, 591-92 (1976):
[W]e are of opinion that restitution is not
only an appropriate but frequently a
salutary technique in the criminal process,
and in the purposes of the probation system
contemplated by the statute.
And, necessarily without prejudice to
the right of any aggrieved party to seek to
recover damages in a civil action (because
not a party to the criminal disposition), we
regard it as preferable in the ordinary
case, where feasible, to provide for
restitution within the probation context.
This for two main and coalescing reasons.
One may be termed the "justice" factor. The
court which orders restitution acts in the
interest of repairing the harm done the
aggrieved party. In meting out substantial
justice in this fashion, the court is even
more importantly motivated by another
reason, which may be termed the
"rehabilitation" factor – the predominant
rehabilitative aspect of probationary
restitution.
We therefore agree with the Appellate
Division that:
Restitution in a proper case may
ofttimes be a compelling reminder
of the wrong done and meaningfully
contribute to the rehabilitation
process.
The entry of a consent judgment would run counter to both
the court's statutory duty to determine a defendant's ability to
pay and the rehabilitative purpose of restitution. If a
judgment was docketed for the full amount of a victim's loss,
7 A-1967-16T1
the victim could enforce the full amount of the judgment,
without regard to the court's finding of the defendant's ability
to pay. Enforcement would obviate any payment schedule set by
the court, thwarting "the predominant rehabilitative aspect of
probationary restitution." Id. at 592.
Further analysis of the statutory scheme of restitution
reveals the Legislature made no provision for civil consent
judgments in the sentencing provisions of the Code. It did
provide, however, for the filing of an order or judgment of
conviction in certain instances.
When a defendant is sentenced to pay restitution, the court
may, under N.J.S.A. 2C:46-1(a), "grant permission for the
payment to be made within a specified period of time or in
specified installments." If permission is not granted, N.J.S.A.
2C:46-1(a) dictates, "restitution shall be payable forthwith,
and the court shall file a copy of the judgment of conviction
with the Clerk of the Superior Court who shall enter . . .
information upon the record of docketed judgments" including, in
pertinent part, naming the defendant as judgment debtor,
N.J.S.A. 2C:46-1(a)(1); and "the amount of any restitution
ordered and the name of any persons entitled to receive payment
as judgment creditors in the amount and according to the
priority set by the court[,]" N.J.S.A. 2C:46-1(a)(3).
8 A-1967-16T1
A like aid to victims was also prescribed in N.J.S.A.
2C:43-2.1, which compels a court to order a defendant convicted
of theft or unlawful taking of a motor vehicle to make
restitution "for any reasonable and necessary expense incurred
by the owner in recovering the motor vehicle and for any damage
to the motor vehicle prior to its recovery." The statute
directs the court to file a copy of the order compelling
restitution with the Clerk of the Superior Court who must enter
on the "record of docketed judgments the name of the convicted
person as judgment debtor, and of the owner as judgment
creditor," as well as the basis of the order, the amount of
restitution and the date of the order. N.J.S.A. 2C:43-2.1.
Such entry has "the same force as a judgment docketed in the
Superior Court." N.J.S.A. 2C:43-2.1.
Though these provisions allow entry of documents tantamount
to civil judgments, the procedures authorized by the Legislature
do not include actual entry of a civil judgment.
The Legislature did not provide for entry of a civil
judgment in favor of a victim even in the event of a default in
payment of restitution by a defendant. Courts are not permitted
to impose an alternative sentence in anticipation of a default;
courts may respond only after non-payment, and then only in
accordance with the statutory framework. N.J.S.A. 2C:44-2(d).
9 A-1967-16T1
Upon default, and after a motion is filed, a hearing held,
and a finding made by the court that the default was without
good cause and willful,4 a court can take the actions set forth
in N.J.S.A. 2C:46-2(a) and (b). Although a number of options
are available under those sections, the entry of a civil
judgment is not among them. The Legislature did provide,
however, upon default, "execution may be levied and such other
measures may be taken for collection of it or the unpaid balance
thereof as are authorized for the collection of an unpaid civil
judgment entered against the defendant in an action on a debt."
N.J.S.A. 2C:46-2(b). A victim entitled to payment from a
defaulting defendant is also permitted to institute summary
collection proceedings authorized by N.J.S.A. 2C:46-2(b).
N.J.S.A. 2C:46-2(c). The statute grants no power to a criminal
judge to aid a victim in collecting the balance of restitution
by entering a civil consent judgment.
Other statutes echo the legislative intent to allow a
victim to pursue civil remedies, albeit without grant of any
authority to a criminal court to aid the victim in seeking such
remedies:
The ordering of restitution pursuant to
this section shall not operate as a bar to
4
At the hearing, the defendant has the burden of proving good
cause for the default by a preponderance of the evidence.
10 A-1967-16T1
the seeking of civil recovery by the victim
based on the incident underlying the
criminal conviction. Restitution ordered
under this section is to be in addition to
any civil remedy which a victim may possess,
but any amount due the victim under any
civil remedy shall be reduced by the amount
ordered under this section to the extent
necessary to avoid double compensation for
the same loss, and the initial restitution
judgment shall remain in full force and
effect.
[N.J.S.A. 2C:44-2(f).]
Our review of the plain language of the comprehensive laws
regarding restitution to crime victims leads us to conclude that
criminal courts are proscribed from entering civil consent
judgments when sentencing a defendant ordered to make
restitution. If all sentences must be imposed in accordance
with the Code, and the Code makes no provision for a court to
enter a civil consent judgment, the entry of such a judgment
would contravene the parameters of the authority conferred on
sentencing courts by the Legislature. Although resorting to
legislative intent is unnecessary when the statutes' plain
language is unambiguous, State v. Nance, 228 N.J. 378, 393
(2017), we elect to undertake a thorough review.
Most of the statutes we analyzed were enacted by the
Legislature in 1991,5 in a comprehensive effort to make crime
5
Lans. Ch. 1991, c. 329.
11 A-1967-16T1
victims whole after suffering a loss at the hands of a criminal
defendant. The Assembly Judiciary, Law and Public Safety
Committee recognized that the 1991 bill "amends various sections
of law concerning victims of crime[,]" including "N.J.S.A. 2C:1-
2 concerning the general purposes of the criminal code
sentencing provisions to include the purpose to promote
restitution to victims." Assembly Judiciary, Law and Pub.
Safety Comm., Statement to A. 4819 (June 6, 1991). See also
State v. Newman, 132 N.J. 159, 175 (1993). The Sponsor
Statement and the Assembly Appropriations Committee Statement
both provide the aim of the bill is to "require[] courts to
order defendants to compensate their victims to the fullest
extent possible" given their ability to pay. Sponsor's
Statement to A. 4819 (enacted as L. 1991 c. 329); Assembly
Appropriations Comm., Statement to A. 4819 (August 1, 1991).
The Appropriations Committee noted that the legislation
provides several measures to improve the
State's ability to collect moneys owed by
convicted persons: a court granting
probation or imposing a suspended sentence
must require, as a condition of the
probation or suspended sentence, that the
defendant make complete payment of
restitution and assessments for victims and
witnesses; the probationary term of any
person who fails to meet these obligations
must be extended; the Department of
Corrections must withhold moneys owed from
funds earned by and kept for inmates; and
persons who default without good cause lose
12 A-1967-16T1
the privilege of driving in this State until
full payment is made.
[Assembly Appropriations Comm., Statement to
A. 4819 (August 1, 1991).]
The measures enacted by the Legislature to foster
collection of restitution, among other payments due from
sentenced defendants, did not include civil consent judgments.
Although the Legislature enacted sweeping changes to provide
compensation to crime victims, it provided spare civil relief –
and none involving consent judgments. We are convinced the
legislative intent was to limit the aid to a victim's civil
recovery to that set forth in the statutes.
The State contends civil consent judgments are authorized
by N.J.S.A. 2C:43-2(d), which provides that Chapter 43 of the
Code – Authorized Disposition of Offenders – "does not deprive
the court of any authority conferred by law to decree a
forfeiture of property, suspend or cancel a license, remove a
person from office, or impose any other civil penalty. Such a
judgment or order may be included in the sentence." It argues
the judgment is a civil penalty which a court may order and
enter.
The State's argument does not consider the qualifying
language in the statute that the authority to impose a civil
penalty must be conferred by law. As we have deduced, civil
13 A-1967-16T1
consent judgments are not among the penalties conferred by law.
We construe N.J.S.A. 2C:43-2(d) to mean that the court may
impose those civil penalties specified in a statute. The civil
penalties include, as set forth in N.J.S.A. 2C:43-2(d),
suspension or cancellation of driving privileges as provided for
in a number of statutes, including N.J.S.A. 2C:43-2(c) and
2C:46-2(a)(1)(a). Likewise, removal from office is a civil
penalty expressly authorized by N.J.S.A. 2C:51-2.6
The two cases relied upon by the State in support of its
argument are inapposite. Both Old Bridge Public Workers &
Sanitation Union v. Township of Old Bridge, 231 N.J. Super. 205
(App. Div. 1989), and State v. Baber, 256 N.J. Super. 240 (Law
Div. 1992), involved forfeiture of public office, a penalty
expressly authorized by statute as a collateral consequence of
conviction.
When the Legislature provided a statutory procedure to
recover payment of fines, we declined to construe N.J.S.A.
2C:43-2(d) as conferring authority on a court to impose fines as
a "civil penalty." In State v. McLaughlin, 310 N.J. Super. 242,
6
An example of one of the "other" civil penalties under N.J.S.A.
2C:43-2(d) is provided in N.J.S.A. 2C:43-3, which mandates "in
any case involving the failure to pay any State tax, the amount
of restitution to the State shall be the full amount of the tax
avoided or evaded, including full civil penalties and interest
as provided by law."
14 A-1967-16T1
246 (App. Div.), certif. denied, 156 N.J. 381 (1998), defendant
was both convicted of and pleaded guilty to crimes related to
false claims and appraisals he submitted to defraud an insurance
company. The trial judge imposed fines totaling $270,000
pursuant to the New Jersey Fraud Prevention Act, N.J.S.A.
17:33A-1 to -30. McLaughlin, supra, 310 N.J. Super. at 261.
Defendant appealed, arguing the trial court lacked authority to
impose fines pursuant to the Act. Ibid. The State countered
that the fines were properly imposed, notwithstanding language
in the Act limiting imposition of civil penalties to persons who
had been found guilty of violating the provisions of the Act by
a court of competent jurisdiction pursuant to a claim initiated
by the Commissioner of Insurance. Ibid. The State posited a
criminal court has the power under N.J.S.A. 2C:43-2(d) to impose
"any civil penalty." McLaughlin, supra, 310 N.J. Super. at 261.
We found the trial court did not have authority pursuant to
N.J.S.A. 2C:43-2(d) to impose fines as civil penalties under the
Act because the Legislature specifically provided that the
Commissioner was required to institute a civil action.
McLaughlin, supra, 310 N.J. Super. at 261-63. Likewise, here,
there is no law that allows the entry of a civil consent
judgment as a penalty.
15 A-1967-16T1
The legislative history of the 1991 amendments also
convince us that the Legislature did not intend to include civil
consent judgments as penalties. The amendments removed
"penalties" from provisions dealing with non-payment of
restitution. Assembly Judiciary, Law and Pub. Safety Comm.,
Statement to A. 4819 (June 6, 1991). One of the amendments, L.
1991, c. 329, § 8, clarifying that payment of restitution may be
a condition of probation, did not include payment of a penalty
as a condition of probation. Assembly Judiciary, Law and Pub.
Safety Comm., Statement to A. 4819 (June 6, 1991). The
legislative intent to treat restitution and penalties separately
is obvious.
All roads lead to the same conclusion. Judge Smith
correctly recognized he was without authority to enter the civil
consent judgment. Inasmuch as the court was without statutory
authority to enter the judgment, we need not address the ethical
implications regarding the use of such judgments in plea
negotiations.
Affirmed.
16 A-1967-16T1