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State v. Harris

Decided: July 13, 1976.


For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Hughes, C.J.


The defendant was indicted and tried for violation of N.J.S.A. 2A:111-2, in that she fraudulently obtained the sum of $1,032 from the welfare authorities by concealing the fact of certain employment earnings. The amount received was stoutly contested at trial. The court properly charged the jury that precision in determining the amount involved was unnecessary to a finding of guilt, as follows:

It is not essential that you find the specific amounts actually received as long as you find that some amount was received by the defendant from the Welfare Board that she was not entitled to receive * * *.

The jury verdict of guilt, therefore, was not efficacious in settling the amount involved in the fraudulent conduct.

The trial judge imposed a short custodial sentence but suspended its execution and placed defendant on probation for a period of three years, which he had authority to do under the statute, N.J.S.A. 2A:168-1. As a condition of probation, he ordered restitution by the defendant to the welfare board of the sum fraudulently obtained, under the colorable authority of the statute, N.J.S.A. 2A:168-2. That statute permits a sentencing judge to impose as a condition of probation that the defendant

shall make reparation or restitution to the aggrieved parties for the damage or loss caused by [the] offense * * *.

The particular amount specified by the court's final order for restitution was $1,012.*fn1 The inconsequential variance from the amount charged in the indictment related to a detail in computation not here relevant. Not only was such lesser amount not admitted by defendant, but it was disputed strongly at sentencing, as it had been at trial, on

apparently substantial grounds*fn2 noted by the Appellate Division. The latter, on appeal, affirmed the conviction but vacated so much of the trial court's judgment as ordered restitution, on the basis that due process had been denied the defendant in the determination of the quantum of restitution.

We granted certification on the petition of the State, 68 N.J. 145 (1975), to review the validity of the restitution order.


Before meeting the essential question on this appeal we hasten to deal with an observation made in the opinion of the Appellate Division which might be a source of later confusion. In noting the State's concession that some of the trial testimony as to the scope of fraud, and the amount involved, may have been confusing, and rejecting the invitation to exercise its original jurisdiction (R. 2:10-5) to resolve discrepancies, the Appellate Division stated "if restitution is to be pursued, it may be done civilly." In the context of other parts of its opinion, the Appellate Division did not intend thus to negate the legitimacy of restitution, under appropriate safeguards, as a probationary tool in the criminal process, and said as much. But the quoted language in isolation may be misunderstood as recommending as a preferable recourse the recovery of restitution by way of damages in a separate civil action. As will be seen, we 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.

As we have recently held in State in the Interest of D.G.W., 70 N.J. 488 (1976), the significance of restitution as a condition of probation thus extends beyond the concept of simple justice to one aggrieved and entitled to restitution of that unlawfully taken or reparation for loss unlawfully inflicted. Just as importantly, probation in general and, a fortiori, restitution as a condition thereof are regarded as rehabilitative in nature. This is essentially recognized in the confluence of statutes, N.J.S.A. 2A:4-61, N.J.S.A. 2A:168-1, 2; the rules of court, R. 3:21-7, R. 5:9-9; case law, see, e.g., P.R. v. State, 133 Ga. App. 346, 210 S.E. 2d 839, 841 (Ct. App. 1974); In re Buehrer, 50 N.J. 501, 509 (1967); Adamo v. McCorkle, 13 N.J. 561, 563 (1953), cert. den., 347 U.S. 928, ...

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