On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
King, Baime and Keefe. The opinion of the court was delivered by Baime, J.A.D.
The Atlantic County Grand Jury returned an indictment charging defendant Charles Krueger with eight counts of third degree theft by deception (N.J.S.A. 2C:20-4). The gist of the charges was that defendant, using several aliases, defrauded various casinos by obtaining gambling chips under false pretenses. Pursuant to an agreement with the State, defendant entered a retraxit plea of guilty to one of the eight counts. The Law Division judge placed defendant on probation for five years, imposed a fine of $2,500, and ordered him to pay restitution in the amount of $7,000. The restitution order directed defendant to make reparation for the entire amount allegedly stolen. This sum includes restitution on the seven remaining counts, which were dismissed pursuant to the State's recommendation. In addition, the Law Division judge ordered, as a condition of probation, that defendant be forever barred from entering any casino hotel in Atlantic City. Although other issues are raised in this appeal, defendant's principal arguments are that (1) absent an adequate factual basis, a sentencing court may not order restitution with respect to counts that are not the subject of a guilty plea and which are ultimately dismissed, and (2) a condition of probation banning entry into a casino hotel is not statutorily authorized and is repugnant to the Eighth Amendment.
We need not recount the facts at length. Unfortunately, the record is somewhat sparse. We gather from the plea transcript that defendant at some point stole various United States savings bonds and after redeeming them, deposited the monies
garnered from this earlier crime in various bank accounts under the name of the actual owner, Robert Rogers. Representing himself to be Robert Rogers, defendant entered Harrah's Hotel and executed a "marker," thereby receiving gambling chips as a consequence. According to defendant's statement at the time of the plea, the stolen monies deposited in the bank accounts were sufficient, he believed, to cover the "marker." However, after learning of the earlier theft of the bonds, the United States Secret Service confiscated the funds defendant had deposited in the bank accounts. The "marker" was dishonored because of insufficient funds.
While we understand that defendant utilized essentially the same modus operandi in obtaining chips from other casinos, the plea transcript is entirely silent with respect to these illegal transactions. Although defendant freely acknowledged that he misrepresented his identity in signing the "marker" and purchasing gambling chips from Harrah's Hotel, the record is wholly barren of any statement by the defendant, confessing his guilt of the offenses charged in the other seven counts of the indictment. We also note that although the Law Division judge otherwise meticulously adhered to the exacting requirements of R. 3:9-2 in accepting defendant's plea, no mention was made of the possibility that restitution would be ordered. While in the standard plea form defendant acknowledged that he might be required to pay restitution, he was never questioned or otherwise apprised of the subject on the record.
At the sentencing proceedings, the Law Division judge, among other aspects of the sentence, ordered defendant to make restitution in an amount not to exceed $9,000. Although the transcript is not altogether clear, it appears that this sum was predicated upon information contained in the presentence report. Included in this sum were amounts encompassed in the illegal transactions alleged in the remaining seven counts of the indictment. Although defendant never protested his guilt of those charges, his attorney vigorously objected on the basis that "there are no other casinos that are owed that kind of
money." Based on counsel's request, the Law Division judge scheduled a hearing to determine the amount of restitution.
Unfortunately, the meager record is not entirely informative with respect to what occurred thereafter. Apparently, defendant filed three separate motions, seeking to (1) withdraw his plea of guilty, (2) vacate the fine, and (3) fix the amount of restitution. Because defendant failed to appear in a timely fashion at the scheduled hearing, the Law Division judge summarily dismissed his motions to withdraw his plea and vacate the fine. Based upon documents which have not been made part of the record, the judge ordered that restitution be made to the various casinos in amounts totaling $7,000. This appeal followed.
Preliminarily, we address an issue that was not presented in defendant's brief but was raised in the course of defense counsel's oral argument on appeal. Specifically, defendant for the first time claims that his retraxit plea of guilty was not supported by an adequate factual basis. In support of his contention, defendant points to a portion of his statement made at the time of his plea that when he signed the "marker" he believed there were sufficient funds in the bank account to cover the item. Defendant thus asserts that he lacked the requisite criminal mental state and the Law Division judge should have rejected his plea sua sponte.
We find no merit in this contention. Theft by deception "occurs where one obtains the property of another by purposely creating a false impression." State v. Talley, 184 N.J. Super. 167, 169, 445 A.2d 446 (App.Div.1982), rev'd on other grounds 94 N.J. 385, 388, 466 A.2d 78 (1983). See also N.J.S.A. 2C:20-4. In that context, it can be said that defendant induced Harrah's Hotel to give him gambling chips based on the false impression that he was Robert Rogers. That defendant believed there were sufficient funds in the bank account to
ultimately cover the "marker" cannot reasonably serve ...