On certification to the Superior Court, Appellate Division, whose opinion is reported at 259 N.J. Super. 274 (1992).
Wilentz, Clifford, Handler, Pollock, O'hern, Garibaldi, Stein
Defendant pleaded guilty to second-degree theft by deception. The trial court ordered him to make restitution to his employer. On defendant's appeal the Appellate Division affirmed, and we granted certification, 133 N.J. 430 (1993). Substantially for the reasons set forth in the Appellate Division opinion, see 259 N.J. Super. 274 (1993), we reject defendant's argument that the trial court should have permitted him to withdraw his guilty plea. We likewise agree with the court below, although on a different basis, that the Employee Retirement
Income Security Act of 1974, 29 U.S.C.A. §§ 1001-1461 (ERISA), does not preempt the trial court's restitution order.
Defendant, Louis Pulasty, was treasurer of the New Jersey State Firemen's Association. A grand jury charged him, in a twenty-nine count indictment, with embezzling more than $600,000. According to the trial court, the charge exposed defendant to a twenty-year term of imprisonment and $200,000 in fines, in addition to restitution. In July 1986, pursuant to a plea bargain, defendant pleaded guilty to second-degree theft by deception in violation of N.J.S.A. 2C:20-4 and agreed to pay restitution. The trial court sentenced defendant to five years imprisonment and ordered him to pay $453,378.32 in restitution. Defendant served fourteen months in prison, after which he completed probation.
In July 1990 defendant moved to have the trial court strike certain language in its restitution order that required defendant either to assign to the Firemen's Association the $531-per-month pension that it paid to defendant, or in the alternative to pay the Essex County Probation Department $531 per month until defendant had discharged the balance of his restitution obligation. In light of defendant's argument that the order as phrased violated the anti-alienation provisions of ERISA, 29 U.S.C.A. 1056(d), the trial court deleted the reference to defendant's pension but left in place so much of the order as imposed on defendant the obligation to make restitution of $531 per month.
In 1991, five years after he had entered his guilty plea, defendant moved to withdraw his plea. The trial court denied the motion. Defendant then began two separate appeals. In the first, defendant argued that the denial of his motion to withdraw his guilty plea was manifestly unjust because, first, the plea lacked a factual basis; second, defendant had not voluntarily and intelligently made the plea because he had not understood its consequences; and, third, defendant had been deprived of effective assistance of counsel. Pursuant to Rule 2:11-3(e)(2), the Appellate
Division found those claims to be "entirely lacking in merit." 259 N.J. Super. at 278. The court stated that the record "demonstrated conclusively" that defendant had understood his plea, that he had voluntarily pleaded guilty, and that the record supported his conviction for second-degree theft. It also found "not a shred of evidence" to support defendant's claim that his counsel had provided ineffective assistance or that but for any error of counsel, defendant would not have entered a plea of guilty. On defendant's first appeal, therefore, the Appellate Division affirmed the judgment of the trial court. Id. at 278-79.
On the second appeal, defendant, whose sole source of income is the combined Social Security payments that he and his wife receive ($1581 per month), a pension benefit from the Firemen's Association ($558 per month), and a pension from Foster Wheeler Corporation ($123 per month), argued that ERISA and 42 U.S.C.A. § 470 of the Social Security Act prohibited the trial court from ordering that he pay $531 per month in restitution because the restitution would come from sources that, defendant asserted, those laws protected. Specifically, defendant claimed that the trial court's modified order directly or indirectly garnisheed his pension in violation of ERISA, U.S.C.A. § 1056(d)(1), which provides that "each pension plan shall provide that benefits provided under ...