On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 87-12-0191S and 87-04-00702I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
We review a judgment that imposed a three-year prison term on a finding that defendant violated the restitution condition of his probationary sentence. Due to differences between what the sentencing judge held and what he later memorialized in an order -- and because of the sentencing judge's intervening retirement -- another judge attempted to ascertain the sentencing judge's intentions and concluded defendant was obligated to pay $1,100,000, as the State argued, and not $600,000, as defendant argued. Because insufficient weight was given to the sentencing transcript, which supports defendant's argument, we reverse.
At the conclusion of a trial, a jury convicted defendant 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. Defendant was sentenced to a three-year prison term on the misapplication convictions and a concurrent eighteen-month prison term on the securities convictions. Expressing, however, an interest in obtaining restitution for the victims, the judge invited a motion for reconsideration. Such a motion was filed, and after hearing testimony on the subject of restitution, the sentencing judge indicated he had "come up with a formula for that restitution." As a result, on October 29, 1992, the judge modified the sentence, this time imposing two consecutive five-year probationary terms, conditioned upon a two-week county jail term and restitution.
The restitution terms were the product of extensive proceedings. In his oral decision of October 29, 1992, the sentencing judge expressed his intention to require a minimum of $600,000 in restitution. An order memorializing the judge's determination, however, was not entered until June 29, 1993, eight months after the oral decision; the order directed that defendant pay $1,100,000 in restitution.
On October 16, 2002, less than two weeks prior to the termination of the ten-year probationary term, defendant was charged with violating probation by failing to make payments that the State claims were required by the court's restitution order. Due to the sentencing judge's intervening retirement, another judge (hereafter "the trial judge") was required to ascertain the terms of restitution and determine whether those terms were willfully violated.
In considering what the retired sentencing judge meant, the trial court had recourse to two things: the June 29, 1993 order, which expressly states that defendant was to pay $1,100,000 in restitution, and the oral decision of October 29, 1992, which includes the sentencing judge's holding that defendant was required to pay a minimum amount of restitution of $600,000.*fn1 Because it was stipulated that defendant paid $682,000 during the ten-year probationary term, defendant argued that he met the restitution requirements revealed by the sentencing judge's oral decision. On the other hand, the State argued that the written order unequivocally imposed an obligation to pay $1,100,000 in restitution. After considering the documentary evidence and the argument of counsel, the trial judge concluded, in his August 27, 2003 oral decision, that the sentencing judge required defendant's payment of $1,100,000 by the end of the ten-year probationary term.
Following that determination, the trial judge heard testimony from two probation officers and defendant. In a subsequent oral decision, the trial judge found that defendant willfully violated the restitution conditions of his probation and sentenced defendant to a three-year prison term, to run consecutively to a federal prison term defendant was then serving in Florida.
Defendant timely appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT WILLFULLY VIOLATED PROBATION BY FAILING TO MAKE RESTITUTION & IMPOSING A TERM OF IMPRISONMENT.
A. The Law Is Settled That The Sentencing Transcript Is The True Source Of The Sentence.
B. In Light Of The Sentencing Transcript, Defendant Cannot Be Found To Have ...