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State v. Topping

Decided: May 9, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ELIZABETH ANN TOPPING, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Gaulkin, Shebell and Havey. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

[248 NJSuper Page 87] On September 6, 1990, defendant, Elizabeth Ann Topping, entered retraxit pleas of guilty to two counts of third degree distribution of cocaine in contravention of N.J.S.A. 2C:35-5a(1) and -5b(3).*fn1 In accordance with the plea agreement, defendant received a sentence from the Law Division judge on October 12, 1990 of five years probation conditioned upon her service of a 180-day term in the Bergen County Jail on weekends. The October 12 order also dismissed four counts of possession and distribution of cocaine which were included in the original indictment. In addition to other fines and penalties, defendant was ordered to pay $825 restitution to the Bergen County

Narcotics Task Force (BCNTF) -- a representation of the money provided by undercover agents to defendant and her codefendant husband for the purchase of cocaine.

According to defendant, she accepted $485 from an undercover narcotics agent for two separate transactions for the purchase of cocaine. Her husband represented that he accepted a total of $230 from undercover agents for the same purpose. The State represents that the additional $110, included in the $825 restitution amount, represented another cocaine transaction with an undercover agent. Further, the State claims that defendant acknowledged the accuracy of a presentence report which referred to that $110 transaction.

On appeal of defendant's sentence to this court on March 13, 1991, following oral argument without briefs, we affirmed the sentence, finding it was not manifestly excessive. However, we permitted defendant to file a brief regarding the legality of the court's ordering payment of $825 restitution.

In her brief on that issue, defendant argues:

POINT I: THE ORDER REQUIRING DEFENDANT TO PAY RESTITUTION IN THE AMOUNT OF $825 TO THE BERGEN COUNTY NARCOTICS TASK FORCE TO REIMBURSE IT FOR THE "BUY MONEY" IS ILLEGAL AS ITS EXPENDITURE WAS INCURRED AS A COST OF PROSECUTION.

POINT II: THE TRIAL COURT ERRED IN ORDERING DEFENDANT TO PAY A SUM OF RESTITUTION GREATER THAN THE AMOUNTS IN THE TWO COUNTS OF THE INDICTMENT TO WHICH SHE PLEADED GUILTY.

POINT III: DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE SENTENCING JUDGE'S FAILURE TO CONDUCT A HEARING REGARDING DEFENDANT'S ABILITY TO PAY THE AMOUNT OF RESTITUTION ORDERED.

Although we find no error in requiring defendant to pay restitution to the BCNTF in this situation, we nevertheless remand this case to the Law Division for consideration of defendant's ability to pay.

It is well-settled that restitution may be ordered as part of a sentence for a criminal offense. N.J.S.A. 2C:43-3; State v. Rhoda, 206 N.J. Super. 584, 591, 503 A.2d 364 (App.Div.1986). Further, N.J.S.A. ...


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