On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication March 3, 1995.
Before Judges Michels, Stern and Keefe. Opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
On July 27, 1990, defendant pled guilty to count fourteen of a twenty-five count indictment charging her with "the unlawful release and abandonment of sewage sludge containing toxic pollutants ... which pose a present and potential threat to human health, living organisms and environment, into the waters of Newark Bay," in violation of N.J.S.A. 2C:17-2a(2), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:2-7, a second degree crime. In exchange, the State recommended dismissal of the remaining twenty-four counts of the indictment and that the matter "be treated as a third degree for sentencing." The State also agreed that no fine would be imposed against defendant, it would "not dispute [the] criteria for overcoming [the] presumption of incarceration," it would "not dispute Mrs. Frank's condition (medical and age) and will not appeal any such findings by the Court." *fn1
On November 26, 1990, defendant was placed on probation for five years with the following conditions imposed, consistent with the negotiated Disposition, embodied in the judgment:
The conditions of Probation are as follows: The defendant cannot leave New York City except to report to the Probation Office in New Jersey; she cannot leave the State of New York without permission of the Probation Officer and the Court; she cannot have any contact, directly or indirectly with any existing businesses, corporations, entities, now or in the future; she must never again work for or keep in contact with any Frank family-owned operations in Bayonne, Staten Island or elsewhere; she is to have no relations, directly or indirectly with barges, tugboats or other vessels associated with her former businesses; there is to be no access to telephones, shortwave radios, or other types of communications with barges, tugboats or vessels and she is to perform 500 hours of community service per year as directed by the Probation Department. In essence defendant is forcefully retired.
In imposing the sentence the trial Judge found only one aggravating factor, "the need for deterring the defendant and others from violating the law," and three mitigating factors, (a) that "defendant has no history of prior delinquency," (b) that "defendant is particularly likely to respond affirmatively to probationary treatment," and (c) that "imprisonment of the defendant would entail excessive hardship to herself because of her age, health and present physical condition." The Judge found, consistent with N.J.S.A. 2C:44-1f(2), that "having regard to the character, age and physical condition of the defendant ... that incarceration would be a serious inJustice which overrides the need to deter such conduct by others." The Judge also found "ample support of the State's intention to support the applicability of a non-custodial presumption."
Defendant, seventy-five years old at the time of her plea, was chief operating officer of co-defendant General Marine Transport Corporation ("General Marine"), also doing business as Standard Marine Services, Inc. ("Standard Marine"), which also pled guilty and was ordered to pay a fine of $1,000,000. At the time of sentencing, the Judge advised defendant of the conditions of probation. He told her:
In essence, the conditions are, you probably already determined from some remarks that I made earlier, it will be a forced involuntary retirement on your part from any and all association, direct or indirect, businesswise or elsewise, from ever operating, conducting, being part of, supervising, controlling, and I can go on and on because any operations that you have with the sludge business, barge business, tank cleaning business, anything that you had been associated for the past 40 years.
The Judge also indicated that:
The bottom line is complete severance of any employment, directly or indirectly, stockholding, directorship, offices, whatever it may be with General Marine Terminal, other corporations, other entities, other entities that are not even thought of today, now and for the term of your probation which is five years.
The bottom line is that you are completely severed from any contact whatsoever, directly or indirectly, be it yourself or through others, family members or friends or employees, from ever again participating in any vessels dealing with the waters, the kill, the ocean or wherever, from polluting or causing any pollution in our environment.
The Judge further stated that:
I believe you live in New York. Probation will be here in New Jersey. At some future time, when the certain circumstances are appropriate, it may be transferred to New York, but not immediately.
You will be permitted to come from New York to New Jersey to report, but you will not be permitted to leave New York City to go to Staten Island or Bayonne without the permission and the authority of the Probation Department and order of this Court.
Defendant acknowledged that she understood and would comply with the conditions.
Defendant's subsequent motions made in 1991, seeking to amend the conditions of probation, were denied insofar as they related to her ability to work and travel. *fn2
On her direct appeal to us defendant contended that two of the conditions of her probation were unreasonable and unlawful. She challenged the limitation prohibiting her from travel outside of New York without permission and the restriction preventing her from working in "any kind of business involving waste disposal and in all Frank-family owned businesses of any kind whatsoever." In our opinion, filed December 22, 1992, we rejected these claims, stating:
The travel and work-related conditions are well within the confines of the plea agreement. Without dispute, Mrs. Frank was the chief operating officer, the major figure in her family businesses, which were major polluters of the New York and New Jersey waters. The travel restrictions are designed to permit the probation department to ...