Argued October 21, 1997 -- Decided February 5, 1998 On certification to the Superior Court, Appellate Division, whose opinion is reported at 295 N.J. Super. 364 (1996).
The opinion of the court was delivered by: Pollock, J.
The basic issue is whether N.J.S.A. 2C:20-8 authorizes a municipal court to order restitution from the defendant who pleads guilty to meter tampering in violation of N.J.S.A. 2C:20-8(c). Defendant, Joseph Kennedy pled guilty in the Atlantic City municipal court to tampering with the gas meter at four income producing properties that he owned in Atlantic City. The municipal court sentenced defendant to five years probation, a $500 fine, and court costs. It also ordered defendant to pay to South Jersey Gas Company (South Jersey Gas) restitution of $15,049.21 for natural gas provided to those properties. The Law Division vacated the restitution order and remanded the matter to the municipal court "for an assessment of restitution apart from that related to the services obtained." The Appellate Division affirmed, 295 N.J. Super. 364 (1996). We granted certification, 149 N.J. 35 (1997), and now reverse and remand to the municipal court.
On June 20, 1995, South Jersey Gas filed a complaint in the Atlantic City municipal court accusing defendant of meter tampering between August 2, 1989, and April 5, 1995, contrary to N.J.S.A. 2C:20-8(c). Defendant entered a plea of guilty. In pleading, he answered questions posed by defense counsel and the court. Before defendant pled, defense counsel informed him that the State was seeking, in addition to the fine for meter tampering, restitution in the amount of $15,049.21. Counsel advised defendant that in counsel's opinion the State could not obtain restitution for meter tampering, as distinguished from theft of services.
When entering his plea, defendant admitted that he owned four income-producing properties in Atlantic City, that he had tampered with the meter serving those properties, and that, unknown to South Jersey Gas, he had received gas through the use of the tampered meter.
Immediately after defendant pled, his counsel argued that under State v. Insabella, 190 N.J. Super. 544 (App. Div. 1983), the court could not order restitution because defendant had pled guilty only to meter tampering and not to theft of services. The court rejected the argument and ordered defendant to pay $15,049.21 in restitution.
On defendant's appeal, the Superior Court, Law Division, held that the receipt and value of the gas were not elements of the meter tampering offense to which defendant pled guilty. Consequently, the Law Division found that defendant's plea did not support an order for restitution under N.J.S.A. 2C:20-8(k) (Section 8(k)). Limiting the State to restitution for damage to the meter, the Law Division remanded the matter to the municipal court for a hearing regarding that damage. Additionally, the court noted that South Jersey Gas could file a civil action for reimbursement for the stolen gas.
The State appealed to the Appellate Division contending that Section 8(k) permits a court to order a defendant convicted of meter tampering to pay restitution for services obtained. State v. Kennedy, 295 N.J. Super. 364, 366 (App. Div. 1996). The Appellate Division recognized that Section 8(k) subjects a defendant convicted of meter tampering to restitution. 295 N.J. Super. at 367. It held, however, that it could not order restitution absent proof of a "link" between defendant's meter tampering and South Jersey Gas's loss. Ibid. Specifically, the Appellate Division noted that Section 8(k) authorizes restitution from a defendant who is convicted of theft of services along with meter tampering or from one who acknowledges when pleading guilty to meter tampering that he or she has obtained utility services unlawfully. Ibid. Because defendant's guilty plea to meter tampering did not acknowledge theft of services, the court held that the plea did not provide a basis for the municipal court's restitution order. Noting South Jersey Gas's ability to pursue a civil action against defendant, the Appellate Division affirmed the judgment of the Law Division.
The first two sections of N.J.S.A. 2C:20-8 criminalize the general offense of "Theft of Services." One provision defines "theft" as an act in which a person "purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token, slug, or other means . . . ." N.J.S.A. 2C:20-8(a); see State v. Kocen, 222 N.J. Super. 517 (App. Div. 1988). Another provision defines a "theft" as an act in which a person who has "control over the disposition of services of another, to which he is not entitled, . . . knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto." N.J.S.A. 2C:20-8(b). The third provision, to which defendant pled guilty, specifically defines the offense of meter tampering:
Any person who, without permission and for the purpose of obtaining electric current, gas or water with intent to defraud any vendor of electricity, gas or water or a person who is furnished by a vendor with electric current, gas or water:
(1) Connects or causes to be connected by wire or any other device with the wires, cables or conductors of any such vendor or any other person; or
(2) Connects or disconnects the meters, pipes or conduits of such vendor or any other person or in any other manner tampers or interferes with such meters, pipes or conduits, or connects with such meters, pipes or conduits by pipes, conduits or other instruments - is guilty of a disorderly persons offense.
Defendant asserts that Section 8(k) authorizes restitution only with a conviction for theft of services. He argues that, because he pled guilty to meter tampering under N.J.S.A. 2C:20-8(c), and not to theft of services under N.J.S.A. ...