On appeal from Superior Court, Law Division, Essex County.
Long, Baime and Thomas. The opinion of the court was delivered by Long, J.A.D.
In January 1986, defendant Louis Pulasty entered a guilty plea to one count of second-degree theft by deception, contrary to N.J.S.A. 2C:20-4, as a part of a plea bargain involving a twenty-nine count indictment which charged him with embezzlement of more than $600,000.00 from the New Jersey State Firemen's Association of which he was treasurer. As a part of the plea bargain, Pulasty agreed to pay restitution to his former employer. He was sentenced to a five-year custodial term and, following a hearing, was ordered to pay $453,378.32 in restitution in a lump sum of $200,000.00 with monthly installments of $2,000.00 to follow. After an appeal to this court, the restitution order was modified both as to the amount of the lump sum payment and the monthly installments.
In July 1990, Pulasty moved before the trial Judge to eliminate the following provision from the restitution order:
[C]ommencing June 1, 1988 defendant is to assign all rights to his $531.00 per month pension from the New Jersey State Firemen's Association to the New Jersey State Firemen's Association, or if this cannot be accomplished, defendant is to pay through the Essex County Probation Department the sum of $531.00 per month, until the balance of the restitution is discharged.
In support of the motion, Pulasty argued that his entire source of income is the combined Social Security he receives with his wife in the amount of $1,581.00, a $558.00 per month Fireman's Association pension and a $123.00 per month pension from the Foster Wheeler Corporation. He urged that the pensions were insulated from assignment by the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. §§ 1001 to 1461 (ERISA). In agreeing to amend the restitution order to eliminate the assignment, the trial Judge stated:
[T]here was and is other monthly income from another pension, from social security benefits, as well as social security benefits to his wife. I take, as I did
back on May 6, 1988, all of those things into account in setting the amount of restitution here and I'm not persuaded to amend that amount or to delete anything from that amount. The amount I said was $531.00 a month at that time. I'm not persuaded to amend that in any way other than to delete the portion of the order that requires assignment of pension rights which, of course, was not done in any event.
In 1991, Pulasty moved to withdraw his guilty plea, which motion was denied.
Pulasty now appeals, urging on A-1609-90T4 that:
UNDER ERISA, PENSION BENEFITS MAY NOT BE DIRECTLY OR INDIRECTLY SUBJECTED TO GARNISHMENT OR ANY OTHER LEGAL PROCESS.
THE ANTI-ALIENATION RULES OF ERISA ARE NOT SUBJECT TO JUDICIALLY-CREATED OR EQUITABLE EXCEPTIONS, EVEN IN THE CASE OF A STATE CRIMINAL RESTITUTION STATUTE.
SOCIAL SECURITY BENEFITS ARE EXEMPT FROM DIRECT OR INDIRECT LEVY, ATTACHMENT, GARNISHMENT, OR OTHER LEGAL PROCESS.
A REASONABLE INTERPRETATION OF ERISA AND THE SOCIAL SECURITY ACT MUST PROHIBIT A RESTITUTION ORDER FOR MONTHLY PAYMENTS UNDER THE CIRCUMSTANCES.
PERIODIC PAYMENTS UNDER A PENSION PLAN CONSTITUTES INCOME SUBJECT TO THE LIMITATIONS ON EXECUTION OF N.J.S.A. 2A:17-50 AND N.J.S.A. 2A:17-56.
THE STATUTORY LIMITATIONS ON INCOME EXECUTIONS MAY NOT BE CIRCUMVENTED BY AN ORDER WHICH REQUIRES THE JUDGMENT DEBTOR TO PAY INSTALLMENTS ...