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Felicioni v. Administrative Office of the Courts

December 15, 2008

LEONARD FELICIONI, PLAINTIFF-APPELLANT,
v.
ADMINISTRATIVE OFFICE OF THE COURTS, THE HONORABLE PHILLIP CARCHMAN, J.A.D., IN HIS CAPACITY AS THE ADMINISTRATIVE DIRECTOR OF THE COURTS, HARVEY M. GOLDSTEIN, IN HIS CAPACITY AS THE MANAGER OF THE INTENSIVE SUPERVISION PROGRAM, AND THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2901-06.

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 13, 2008

Before Judges Parrillo, Lihotz and Messano.

At issue is the manner in which restitution payments are processed and distributed to crime victims by the State. Appellant Leonard Felicioni, a victim of criminal fraud to whom payment of restitution was court-ordered, launches a multi-faceted challenge to the State's current system of paying restitution on a first-in-time rather than automatic pro-rata basis. He argues that this method of distribution violates his substantive due process and equal protection rights under the federal and State constitutions, as well as his State constitutional rights under the Victims Rights Amendment (VRA), N.J. Const., art. I, ¶ 22, and his statutory rights under New Jersey's Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -70, and Civil Rights Act, N.J.S.A. 10:6-1 to -2. For the following reasons, we disagree.

By way of background, Felicioni was a victim of a fraudulent scheme perpetuated by Michael Cervini, a used car salesman. Cervini accepted cars from Felicioni on consignment and sold them to third parties without conveying good title or paying Felicioni. Cervini eventually pled guilty to third-degree theft by deception, N.J.S.A. 2C:20-4, and, on November 1, 2004, was sentenced to a four-year prison term and ordered to pay Felicioni restitution in the amount of $16,200 through either the New Jersey Department of Corrections (DOC) or the Atlantic County Probation Department.

There were multiple victims of Cervini's criminal scheme, each supporting a separate prosecution of Cervini. As such, eight convictions preceded the instant one involving Felicioni, and eleven followed. Each judgment of conviction included a separate restitution order specific to the loss incurred by the particular victim involved. All totaled, Cervini was ordered to pay $95,317.32 in restitution to twenty victims, including Felicioni.

In each case, restitution was ordered pursuant to N.J.S.A. 2C:44-2, which provides, in pertinent part:

b. The court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment or probation that may be imposed if (1) The victim . . . suffered a loss . . .; (2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution.

c. . . . (2) In determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay. The court shall not reduce a restitution award by any amount that the victim has received from the Violent Crimes Compensation Board, but shall order the defendant to pay any restitution ordered for a loss previously compensated by the Board to the Violent Crimes Compensation Board. If restitution to more than one person is set at the same time, the court shall set priorities of payment. . . . .

[N.J.S.A. 2C:44-2 (emphasis added).]

After mandating restitution in criminal matters where the established pre-conditions are satisfied, the Legislature left the timing and method of payment essentially to the discretion of the court. Thus, N.J.S.A. 2C:46-1 states, in relevant part:

a. When a defendant is sentenced to . . . make restitution, the court may grant permission for the payment to be made within a specified period of time or in specified installments. If no such permission is embodied in the sentence, the assessment, fine, penalty, fee or restitution shall be payable forthwith, and the court shall file a copy of the judgment of conviction with the Clerk of the Superior Court . . . .

b. (1) When a defendant sentenced to . . . make restitution is also sentenced to probation, the court shall make continuing payment of installments on the assessment and restitution a condition of probation. . . . .

[N.J.S.A. 2C:46-1.]

Ordinarily, the Probation Division of the Judiciary's Administrative Office of the Courts (AOC) is charged statutorily with the responsibility of collecting court-imposed financial obligations, N.J.S.A. 2A:168-11, and when a criminal defendant remains incarcerated, restitution payments are processed by the DOC.*fn1 Here, however, because as a non-violent offender Cervini was found eligible for, and enrolled in, the Judiciary's Intensive Supervision Program (ISP), a program operated by the AOC and designed as an intermediate form of punishment -- less costly than prison but more onerous than traditional probation -- the ISP oversees the collection of his court-imposed financial obligations, ...


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