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State v. Bausch

Decided: November 19, 1979.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FREDERICK BAUSCH, DEFENDANT-APPELLANT



On appeal from Union County Court.

Bischoff, Botter and Dwyer.

BY THE COURT.

Defendant appeals from the imposition of restitution as a condition of the probationary sentence he received in the trial court.

On April 24, 1977 defendant and his brother broke into the warehouse of Walter Carpet Mills, where defendant worked as a cutter and forklift operator. They had partially loaded a truck with rugs when they were caught red-handed by the police. When questioned defendant gave a statement in which he admitted to the crime and confessed that he and Leon Marowitz had "cut pieces off rolls, 14 or 15 foot pieces, and sold them and [had] split half [the proceeds of] the sales. That [had] happened quite a few times, at least ten times." Defendant was indicted in count 1 for the April breaking and entering (N.J.S.A. 2A:94-1), in count 2 for the April larceny (N.J.S.A. 2A:119-2(a)), and in count 3 for embezzlement of carpet from September 1976 to April 1977 (N.J.S.A. 2A:102-5). Marowitz was also indicted for the embezzlement.

Marowitz subsequently pleaded guilty and received a suspended prison sentence, a fine and probation which included a restitution condition. Defendant entered into a plea agreement pursuant to which he entered guilty pleas to counts 1 and 2, breaking and entering and larceny. The State agreed to recommend that the sentences for those offenses run concurrently and that the third count for embezzlement be dismissed. A presentence report was submitted to which was attached an itemized

list from Walter Carpet Mills of inventory losses from September 1976 to April 1977, totalling $6,896.51.

The judge sentenced defendant on count 1 (breaking and entering) to a suspended indeterminate term in the youth correctional complex, imposed a fine of $250, placed defendant on probation for five years and specified that one of the conditions of probation would be payment of restitution to the victim in the amount of $3,448, identical to the restitution required of Marowitz. An identical concurrent sentence was imposed on count 2 (larceny). On this appeal defendant challenges the imposition of restitution for the embezzlement as a condition of probation after conviction by guilty plea on the other counts.

The ordering of restitution or reparation from a convicted offender as a condition of probation has been specifically authorized by the Legislature in N.J.S.A. 2A:168-2:

The court shall determine and may, at any time, modify the conditions of probation, and may, among others, include any of the following: That the probationer . . . shall make reparation or restitution to the aggrieved parties for the damage or loss caused by his offense. . .. [Emphasis supplied.]

The design of the range of penalties for crime is a legislative, not a judicial function. State v. Wright , 156 N.J. Super. 559, 562 (App.Div.1978); State v. Hubbard , 123 N.J. Super. 345, 351 (App.Div.1973), certif. den. 63 N.J. 325 (1973). There are several states whose probation statutes have been interpreted to permit imposition of restitution for the whole loss caused by a course of criminal conduct as a condition of probation upon conviction of a crime arising out of that course of conduct. People v. Gallagher , 55 Mich.App. 613, 223 N.W. 2d 92, 95 (Ct.App.1974); see Garski v. State , 75 Wis. 2d 62, 248 N.W. 2d 425, 430-431 (Sup.Ct.1977); People v. Richards , 17 Cal. 3d 614, 131 Cal.Rptr. 537, 552 P. 2d 97, 100, 102-103 (Sup.Ct.1976); People v. Dawes , 132 Ill.App. 2d 435, 270 N.E. 2d 214, 215 (App.Ct.1971), aff'd 52 Ill. 2d 121, 284 N.E. 2d 629 (Sup.Ct.1972); People v. Pettit , [171 NJSuper Page 320] 88 Mich.App. 263, 276 N.W. 2d 878, 880 (Ct.App.1979); People v. Seda-Ruiz , 87 Mich.App. 100, 273 N.W. 2d 602 (Ct.App.1978); State v. Cummings , 120 Ariz. 69, 583 P. 2d 1389, 1391 (Ct.App.1978); People v. Nawrocki , 8 Mich.App. 225, 154 N.W. 2d 45 (Ct.App.1967). Courts in other states have consistently interpreted probation statutes similar or identical to N.J.S.A. 2A:168-2 as limiting the power of the sentencing court to condition probation on restitution or reparation only for the loss or damage suffered as the result of the crime for which the accused was convicted, either after a trial or by entry of a guilty plea. See State v. Reedeker , Utah, 534 P. 2d 1240, 1241 (Sup.Ct.1975) (statute permits probationary condition of restitution "for the actual damages or losses caused by the offense"); State v. Cox , 35 Or.App. 169, 581 P. 2d 104, 105 n.1 (App.Ct.1978) (statute permits probationary condition of "reparation or restitution to the aggrieved party for the damage or loss caused by [the] offense in an amount to be determined by the court"); Crowder v. State , 334 So. 2d 819 (Fla.Ct.App.1976), cert. den. 342 So. 2d 1101 (Fla.Sup.Ct.1977) (statute permits probationary condition of "reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court"); State v. Eilts , 23 Wash.App. 39, 596 P. 2d 1050, 1053 (Ct.App.1979) (statute permits probationary condition of restitution "to any person or who may have suffered loss or damage by reason of the commission of the crime in question . . .."). The federal probation statute, 18 U.S.C.A. § 3651, permits "restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which . . . the defendant is convicted either after a trial or a plea of guilty." United States v. Tiler , 602 F.2d 30, 33 (2 Cir. 1979); see, e.g., Karrell v. United States , 181 F.2d 981, 986-987 (9 Cir. 1950), cert. den. 340 U.S. 891, 71 S. Ct. 206, 95 L. Ed. 646 (1950); United States v. Taylor , 305 F.2d 183, 187 (4 Cir. 1962), cert. den. 371 U.S. 894, 83 S. Ct. 193, 9 L. Ed. 2d 126 (1962), reh'g den. 371 U.S. 943, 83 S. Ct. 322, 9 L. Ed. 2d 277 (1962); United States v. Landay , 513 F.2d 306, 308 (5 Cir. 1975); Annotation,

"Construction of clause of Federal Probation Act (18 U.S.C. § 3651) that, in placing defendant on probation upon terms and conditions, defendant may be required to make ...


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