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State v. Spann

Decided: May 15, 1978.

STATE OF NEW JERSEY, PLAINTIFF,
v.
VIVIAN SPANN, DEFENDANT



Feinberg, J.s.c.

Feinberg

Defendant moved to vacate the court order of termination from the Pretrial Intervention Program. The specific issue she raises is whether the court may impose restitution as a condition of participation in that Program.

The facts indicate that on December 16, 1976 defendant was indicted for violation of N.J.S.A. 2A:111-3 for failure to disclose the receipt of unemployment insurance benefits she received from September 23, 1974 through May 31, 1975. During March through May of 1975 defendant was also receiving welfare funds through the Aid to Families with Dependent Children Program. The receipt of benefits from the two welfare programs resulted in an overpayment of $471.00. On January 11, 1977 defendant applied for acceptance into the Pretrial Intervention Program. On March 31, 1977 she was admitted into the Program with a first postponement. The order had the notations "Restitution" and "Welfare Fraud $471." On July 13, 1977 defendant's supervisor in the PTI program requested a second postponement; she indicated that defendant had satisfied all of the conditions but was unable to make restitution. On August 24, 1977 a second postponement was ordered by the court. Defendant did not make restitution during this second period. Throughout the proceedings defendant has

maintained that she is innocent and should not be required to make restitution. On January 12, 1978 defendant was ordered to be terminated from the Pretrial Intervention Program for her failure to make restitution in the amount of $471.

On April 3, 1978 a hearing was held by this court to ascertain (1) whether defendant was properly informed of the requirements to make restitution, as contemplated by the court; (2) whether her refusal was based on her inability to make the restitution or as a result of her refusal or unwillingness to do so.

Testimony received clearly indicated that defendant was properly advised of the requirement for restitution and that the question of hardship and inability to pay was not in issue, but the issue involved was that alone of her refusal and unwillingness to do so.

Defendant asserts that the payment of restitution in the present case would be an admission of guilty to the welfare fraud indictment. Defendant further asserts that a paradox exists if a program which is chiefly designed to affect rehabilitation and correction must process applicants who are innocent and those in need of neither rehabilitation nor correction.

Defendant contends that for persons like her, admitted to the Program, the requirement of restitution cannot be justified in terms of any of the stated goals of the Pretrial Intervention Program.

Defendant fails to realize that admission to the Pretrial Intervention Program is not a matter of right but a privilege, subject to conditions and what might be referred to as pre-conviction probation. See State v. Braeunig , 135 N.J. Super. 89 (Law Division 1975).

It follows that pre-conviction probation likewise is within the inherent and implied judicial authority. United States v. Smith , 444 F.2d 61-62 (8 Cir. 1971), cert. den. 405 U.S. 977, 92 S. Ct. 1205, 31 L. Ed. 2d 253 (1974). The court there said, "(W)e think the course of the common law in England and the development of the

common law and statutory law in the United States demonstrate that the courts have the inherent power to place restrictive conditions upon the granting of bail." The Federal Bail Reform Act (1966), 18 U.S.C.A. 3146 et seq. , authorizes federal courts to place an accused in the custody of a designated person or organization agreeing to supervise him, or ...


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