On certification to the Superior Court, Appellate Division, whose opinion is reported at 171 N.J. Super. 314 (1979).
For affirmance as modified -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Schreiber, J. Sullivan and Pashman, JJ., concurring in the result.
[83 NJ Page 428] The grand jury indictment charged defendant Frederick Bausch with three counts. The first alleged that on April 24, 1977 he broke into the building of Walter Carpets in Linden with an intent to steal, contrary to the provisions of N.J.S.A. 2A:94-1. The second count asserted that on that occasion he stole property belonging to Walter Carpets having a value of more than $500, such act being in violation of N.J.S.A. 2A:119-2(a). The last count stated that between September 1976 and April 1977, defendant and a Leon Marowitz embezzled property of Walter Carpets, their employer, contrary to N.J.S.A. 2A:102-5.
Defendant pleaded not guilty to all counts of the indictment. On January 30, 1978, pursuant to an arrangement, he retracted his pleas and pleaded guilty to Counts 1 and 2. At the hearing he explained that he broke into the side window of Walter Carpets, turned off the alarm and then drove his van in the back of the building. He had started to pull carpets out of the racks when the police arrived and subsequently apprehended him. The rugs which he attempted to steal were worth about $1,000.
The Assistant Prosecutor recommended that any sentences imposed for Counts 1 and 2 run concurrently. It was also apparently understood that Count 3 would be dismissed. The Assistant Prosecutor also told defendant that the trial court would receive a presentence report from the Probation Department, that the court would review the report before sentencing, and that the court "may impose any sentence that [it] deems appropriate within the confines of the law." The trial court accepted the guilty pleas to Counts 1 and 2.
Bausch was sentenced on February 24, 1978. Noting that the 25-year-old defendant had no prior record and that he had cooperated with law enforcement authorities, the trial court sentenced defendant on Count 1 to an indeterminate term in the Youth Correctional Complex and imposed a fine of $250. The term was suspended and defendant was placed on probation for five years. A special condition of probation was that defendant make restitution to Walter Carpets of $3,448. This represented one-half of the losses Walter Carpets claimed it had suffered as a result of the embezzlements in Count 3. The restitution and fine were to be paid during the probationary period. The same sentence was imposed on Count 2, the terms and probation periods to be concurrent. Count 3 was dismissed. The final written judgment, however, provided that the restitution of $3,448 was a special condition only under the Count 1 sentence. The total fine was $500.
Defendant moved for reconsideration of the sentence. In oral argument on March 23, 1978, defense counsel contended that the restitution condition was invalid because the embezzlement count had been dismissed. He maintained that Bausch pleaded
guilty to breaking and entry (Count 1) and larceny (Count 2) in order to eliminate the embezzlement charge with its accompanying possibility of restitution. It was for that reason defendant had pleaded guilty to two high misdemeanors and bargained for dismissal of a misdemeanor (embezzlement). Finally, counsel argued there had been no hearing or factual basis shown justifying the dollar amount fixed or establishing defendant's ability to pay.
The Assistant Prosecutor did not deny knowledge of defendant's motive in seeking a dismissal of the embezzlement count. Instead, the Assistant Prosecutor argued that restitution was authorized under N.J.S.A. 2A:168-2 and that the presentence report contained a factual basis for the amount of restitution.
The trial court denied the motion for sentence reconsideration. Holding that the power to order restitution existed, it commented that defendant in a statement to the police had admitted that he and Marowitz had taken 14- or 15-foot rolls of rugs on at least ten occasions, sold them and split the proceeds. The employer's inventory loss attached to the presentence report set forth a loss of $6,896. Thus, the trial court concluded a factual basis existed for the restitution.
The Appellate Division affirmed the judgments of conviction and the sentences, but remanded for reconsideration of the amount of restitution and the conditions of repayment in light of our decisions in State in the Interest of D.G.W., 70 N.J. 488 (1976), and State v. Harris, 70 N.J. 586 (1976). 171 N.J. Super. 314 (App.Div.1979). The Appellate Division held that restitution could properly include the losses covered in Count 3, which had been dismissed, because defendant had signed a statement admitting thefts on prior occasions. It rejected defendant's argument that the restitution condition violated his plea agreement. The Appellate Division noted that defendant's understanding that he would not be subjected to restitution had not been communicated to the trial court. We granted defendant's petition for certification. 82 N.J. 289 (1980).
Authority to require restitution as a condition of probation is found in N.J.S.A. 2A:168-2 which states that:
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 ...