On Appeal from Superior Court, Law Division, Somerset County.
Furman, Petrella and Cohen. The opinion of the court was delivered by Petrella, J.A.D.
After a remand for redetermination of restitution following a prior appeal to this court, defendant again appeals, challenging the restitution aspect of the sentence on a different ground than previously raised. We conclude that there is no constitutional infringement either by an increase in the amount of restitution on the remand or by the failure to mention the possibility of restitution at the time of the plea, and we affirm.
The prior appeal in this matter was decided on April 29, 1982 under docket No. A-3726-80. That appeal essentially involved the propriety of the action by the judge below in ordering defendant to make restitution of a maximum of $1,000 each to twelve of the victims of defendant's crimes. The proceedings arose out of defendant's sentencing after guilty pleas were entered pursuant to a plea agreement and were summarized in the prior appeal as follows:
After pleading guilty to 25 crimes, the bulk of which were burglary and theft offenses, custodial sentences to be served in New Jersey State Prison were imposed. In addition the sentencing judge also ordered the defendant to pay restitution to each of his 12 victims. The restitution per victim was fixed at a maximum of $1,000 each. The precise per victim restitution was to be determined by the Somerset County Prosecutor's Office based on affidavits of loss to be filed within 60 days subsequent to sentencing with the prosecutor's office. Thereafter, 11 of the 12 victims filed affidavits with the prosecutor's office. Based thereon the court, on June 3, 1981, ordered restitution in the sum of $1,000 to each of the 11 victims. No opportunity was afforded defendant to examine the affidavits of loss or to be heard in connection therewith.
Because we concluded in the prior appeal that the trial judge's lack of proper procedures and lack of a hearing in fixing restitution rendered his action invalid as violative of due
process, we reversed and remanded for a determination of restitution utilizing procedures outlined in State in Interest of D.G.W., 70 N.J. 488 (1976) and State v. Harris, 70 N.J. 586 (1976), which dealt with restitution in a probation context.
Pursuant to the remand by our earlier opinion, the trial judge conducted the first of two hearings. Defendant challenged the amount of losses claimed by 10 victims in that hearing, but did not object to losses claimed by five other victims.*fn1 As a result of this hearing, the judge entered a September 14, 1982 order, requiring defendant to pay $1,000 each to the five victims whose claims were undisputed. A second hearing was scheduled with respect to the disputed claims.
At that subsequent proceeding defendant retracted his earlier lack of objection to the claims of the five victims whose claims he had previously not disputed and those claims were reconsidered. It was apparently around this time that defendant's new attorney first raised a question about whether restitution had been part of the plea agreement. Only nine victims appeared and testified at the hearing. At this hearing the judge indicated that the victims would be allowed to testify to their total losses and would not be limited to the $1,000 previously set at defendant's sentencing in 1981. He also decided that if a loss of less than $1,000 was involved, the restitution awarded would be limited to the lesser amount. Nine of the victims of defendant's burglaries and thefts testified as to their losses. Defendant also testified. He denied taking some of the items listed by the victims. In addition, he indicated that upon his release from prison he had employment prospects. He said that his uncle owned a construction company and that he had been offered a job at about $14 an hour. His parents lived on a 47 acre estate and defendant's father was characterized as a successful, self-employed businessman. Based on the fact that
he would be living at home, defendant said he could pay restitution at a rate of about $3,000 to $4,000 a year.
In a December 9, 1982 letter opinion the judge determined that although the value of the property stolen by defendant was probably between $80,000 and $100,000, the value proven by eight of the witnesses amounted to $49,299.33. He ordered defendant to make restitution of $18,043.27, allocated to eight of the testifying victims in amounts ranging from $1,000 to $5,567.*fn2 One other victim was deemed to have suffered no loss and no restitution was ordered as to her. This compares with the $12,000 maximum under the judge's original order of restitution of up to $1,000 for each of 12 victims.
In determining that restitution was appropriate, the judge noted defendant's excellent chances of obtaining a "good paying job when released from prison" and concluded "[t]here is no logical or equitable reason why he should not be compelled to make at least partial restitution." Defendant appeals from the December 22, 1982 order implementing the judge's decision and argues that:
1) Increasing the amount of restitution after his successful appeal violated his constitutional right to ...