On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Lora, Michels and Larner.
Defendant was charged with six counts of welfare fraud, in violation of N.J.S.A. 2A:111-2. She had allegedly received some $17,915.64 in overpayments between 1970 and 1975.
Pursuant to plea negotiations, defendant entered a retraxit plea of guilty to count 3 charging her with receiving welfare monies between November 16, 1970 and June 30, 1974,
while working for New Jersey Bell Telephone Company, in exchange for which the State agreed to recommend dismissal of the remaining counts and a custodial term not to exceed 60 days with restitution of $4,000.
On July 19, 1976 the trial judge sentenced defendant to 60 days in Atlantic County Jail, with 30 days suspended, and two years probation during which defendant would make $4,000 restitution, the Probation Department to fix the terms of repayment.
Defendant appealed, contending the restitution requirement was excessive. In an unreported opinion, State v. Blassingale , Docket No. A-4-76, October 19, 1977, we affirmed in part, but remanded "with respect to the restitution condition of probation," holding that the recent decisions in State v. Harris , 70 N.J. 586 (1976), and State in Interest of D.G.W. , 70 N.J. 488 (1976), mandated that summary hearing procedures be employed to determine "defendant's capacity to pay" and the appropriate amount. We also ruled that the sentencing court, not the Probation Department, must establish the terms and conditions of any restitution payments.
In the meantime, and prior to our remand, defendant had served her custodial term and had begun serving her probationary term.
Following the hearing pursuant to our remand the trial judge reduced the amount of restitution from $4,000 to $1,800 and extended defendant's probationary term from two to five years. He determined that defendant could make monthly payments of $30 over a five-year period. In extending the probationary term the trial judge stated that the period of probation after the first two years would be nonreporting probation and would be continued only for the purpose of monitoring the monthly payments. He went on to say, "she will be under all of the terms and conditions of Revised Statute 2A:168-2 for two full years starting whenever the probation started. After those two full years, there will be no other requirement other than that
she pay the monthly payment of $30.00 per month to the Probation Department."
Defendant again appeals, contending that the sentencing court was without jurisdiction to extend the probationary period and that, in any event, the amount of restitution is manifestly excessive, unduly punitive, ...