Before Judges Havey, Keefe and Collester.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 10, 2000 - Decided March 6, 2000
On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
The central issue raised by this appeal is whether a defendant, convicted of a crime and subject to a restitution order, is absolved from the terms of restitution by settling with the victim in a civil action arising out of the same facts which formed the basis of the criminal conviction. On defendant's motion to vacate the restitution order, Judge Hoffman concluded that the settlement agreement and release given to defendant by the victim were not binding upon the court or the State, reasoning that the State and judicial system have an interest in restitution separate and apart from simply compensating the victim. Accordingly, the judge held that "a private agreement to extinguish restitution is contrary to the public policy of this state and thus is void." We agree and accordingly affirm.
A jury found defendant guilty of four counts of misapplication of entrusted property, N.J.S.A. 2C:21-15, and five counts of unlawful offer, sale or purchase of securities, N.J.S.A. 49:3-52 and N.J.S.A. 49:3-70(a). Defendant was sentenced to an aggregate ten-year period of probation, conditioned upon defendant serving two weeks in jail and fulfilling the terms of a restitution order. Under the order dated June 29, 1993, the State and defendant stipulated to the total damages for each victim as follows:
Barbara Gabriel $46,940.00
Steven Siperstein $22,000.00
Salvatore Mendola $43,000.00
Delores and Michael Magnifico $19,000.00
The order requires defendant to make restitution in the amount of $1.l million with "minimum payment" as follows: (1) monthly payments by defendant in the amount of $2,000 to the Middlesex County Probation Department for a period of ten years, and a lump-sum payment of $15,000 on or before January 1, 1994; (2) payment from two "custodia legis" funds subject to orders entered in a related civil action into the restitution fund, approximating $106,000; (3) defendant selling his Florida residence within seven years (June 29, 2000), with all of the proceeds of sale, not less than $135,000, paid into the restitutionary account; (4) each of the five victims receiving $10,000 once the restitutionary account totaled $50,000, with the remainder of the money being paid to them on a pro rata basis; and (5) payment by defendant "by the end of his probationary period, any sums of money which were contemplated by this order but were not made available, with the exception of the monthly payments and the lump sum payment due in January, 1994." The order further provided that defendant would be entitled to a credit against his restitutionary obligation to the extent that the individual victims receive payment from defendant "through any other judgment or source emanating from [defendant]."
On August 2, 1993, victim Paul Zito and several relatives (referred to collectively as "Zito"), obtained a civil judgment against defendant in the amount of $1.6 million predicated on the same misconduct which gave rise to defendant's criminal convictions. Zito recorded this judgment in Florida, where defendant resided and began proceedings to enforce it.
On April 12, 1995, Zito and defendant signed a forbearance agreement under which Zito agreed "to forbear from exercising any rights or remedies which it may have to collect on the Indebtedness . . . ." In return, defendant agreed to: (1) pledge to Zito all his stock in U.S. Coin Exchange, Inc. (a company owned by defendant) to secure the indebtedness; (2) grant Zito a lien on a 1991 Porsche Carrera, securing the sum of $12,500; (3) deliver to Zito a mortgage on defendant's Florida property (as delineated in the restitution order), securing a non-recourse note in the amount of $120,000; and (4) list the Florida property for sale and, if sold, to pay the proceeds into the restitutionary account. Defendant also agreed to turn over certain personal property to Zito.
Additionally, defendant agreed to "[c]omply with all terms and conditions of the Restitution Order . . . and perform all actions required under the Restitution Order . . . ." The agreement provided:
DeAngelis and U.S. Coin understand and agree that . . . [nothing] in this Agreement is intended to or should be construed to diminish DeAngelis' obligations as presently required under the Restitution Order to make periodic restitution payments to the Middlesex County Probation Department ("Periodic Restitution Payments") all of which shall survive the execution of this Agreement, the occurrence of the Latest Termination Date, and the delivery of the documents described above. Provided no Actionable Event has occurred, the Zitos agree to not seek or obtain a modification, amendment, or alteration of the Restitution Order the effect of which would increase the amount of the Periodic Restitution Payments beyond the amount and duration currently set forth in the Restitution Order. The Zitos agree that upon their execution of the satisfactions of the Judgment and ...