On appeal from the Superior Court of New Jersey, Law Division, Sussex County.
Approved for Publication March 11, 1997.
Before Judges Long, A.a. Rodriguez and Cuff. The opinion of the court was delivered by Cuff, J.A.D.
The opinion of the court was delivered by: Cuff
The opinion of the court was delivered by
Defendant William Scribner appeals from the imposition of a restitution order of $1,628.76. A similar restitution order was imposed on his co-defendant. The sentencing Judge explicitly stated that between the co-defendants there was joint and several liability for the restitution. Defendant argues that the imposition of joint and several restitution liability on co-defendants without consideration of their role in the criminal conduct or their ability to pay contravenes the law governing the imposition of restitution. We reverse the restitution order and remand for reconsideration of an appropriate amount of restitution.
Following guilty pleas to four accusations charging three third degree thefts and one fourth degree theft, defendant was sentenced to concurrent four-year terms of imprisonment for the third degree thefts and a concurrent nine-month term for the fourth degree theft. These sentences were also to run concurrently with a four-year term imposed in another vicinage. A $200 VCCB penalty was imposed, as well as a $75 Safe Neighborhoods Services Fund fee. Defendant was also ordered to pay restitution in the amount of $1,628.76.
Because the matter was not tried and the factual basis of the pleas to the accusations lacks a detailed recitation of defendant's criminal misadventures, we derive some of the background of the offenses from the Presentence Report. On April 25, 1994, defendant was driving his Mustang on Route 23 in Hamburg, Sussex County. James Sienko was a passenger in the car. Defendant was stopped by a police officer for a motor vehicle violation. The officer observed that the car was cluttered with electronic equipment, such as car stereos, a scanner, an antenna, and taillights. The Mustang also sported new tires and rims which were later identified by the owner of a store in Hardyston as those that had been on his car.
At sentencing, the State stipulated that the full loss was $1,628.76. The Judge ordered defendant to pay the full loss as restitution. Co-defendant Sienko was also ordered to pay the full loss as restitution. The Judgment of Conviction provides:
The defendant must pay the restitution that was originally ordered when [he] went into the Pretrial Intervention Program. The Pretrial Order dated June 20, 1994 provides that the defendant agreed to make restitution in the amount of $1,628.76. This shall continue to be the Order of the court so that the victim does not suffer any out-of-pocket loss. The court is aware that there is a codefendant and the defendant may ultimately receive the benefit of any payments that the codefendant is ordered to make. Nevertheless, the Order of the court is that the defendant is responsible for full and complete restitution in the event that no payments are made by the codefendant.
Defendant states that imposition of joint and several liability for restitution is a sentencing policy in this vicinage; the State does not take issue with this proposition.
On appeal, defendant raises the following points:
THE SENTENCING COURT ERRED IN ORDERING THAT DEFENDANT BE JOINTLY AND SEVERALLY LIABLE FOR RESTITUTION, ESPECIALLY AFTER CONCLUDING THAT HIS CONDUCT WAS SUBSTANTIALLY INFLUENCED BY ...