April 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VICTORIA STRATOS, DEFENDANT. THE COMMUNITY CHURCH OF PARAMUS, APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-3225.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 29, 2011
Before Judges Yannotti and Espinosa.
The Community Church of Paramus (the Church) was the victim of a theft by its volunteer bookkeeper, defendant Victoria Stratos, and filed a motion for reconsideration of her sentence after the prosecutor's office failed to notify the Church of Stratos's sentencing date as required by N.J.S.A. 52:4B-36. The Church appeals from an order denying its motion for reconsideration of Stratos's sentence. For the reasons that follow, we affirm.
Defendant pled guilty to an amended charge of theft by deception in an amount of less than two hundred dollars, a disorderly persons offense. At the time of the plea, the prosecutor stated,
The State is going to be asking for $15,000 in restitution to Mercer Insurance Group . . . . Furthermore, Judge, if any further restitution is owed or is thought to be owed by the victims[,] they are welcome to sue civilly. But this is the extent of the restitution that we're seeking for this case criminally.
In providing a factual basis for her guilty plea, defendant admitted that she worked as a volunteer bookkeeper, administrator and secretary for the Church for approximately fourteen years and during a three year period ending in March 31, 2009, unlawfully took an unspecified amount of money. She was sentenced on the same day as her guilty plea to probation for one year, with the condition that she pay $15,000 in restitution, and appropriate fines and penalties.
The Church moved for reconsideration of defendant's sentence and the amount of restitution. In support of its motion, the Church submitted the certification of Peter Ferriero, a deacon of the Church, in which he estimated the actual loss to the Church to be $69,245.82. Ferriero further stated that defendant admitted to the prosecutor that she stole $35,895.54 of that amount. He stated that the Church was never notified of the plea offer, of the sentencing date or of its right to make a victim impact statement directly to the sentencing court. The Church's motion was denied.
In this appeal, the Church argues that it was denied the rights granted to it as a victim under N.J.S.A. 52:4B-36, and that, as a result, the matter should be remanded to the trial court for a rehearing and resentencing, specifically as to the issue of restitution.
The Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38, grants victims certain rights, including: the right "[t]o be informed about the criminal justice process[,]" the right "[t]o be advised of case progress and final disposition[,]" and the right "[t]o make, prior to sentencing, an in-person statement directly to the sentencing court concerning the impact of the crime." N.J.S.A. 52:4B-36(b), (k), and (n); State v. Means, 191 N.J. 610, 617 (2007). The Attorney General issued standards to protect these rights, Attorney General Standards To Ensure The Rights of Crime Victims, pt. 2, § II.I., at 21 (Apr. 28, 1993).*fn1
The Victim's Rights Amendment to the Constitution, adopted in 1991, reinforced the grant of these rights but also explicitly provided, "A victim of a crime shall be entitled to those rights and remedies as may be provided by the Legislature." N.J. Const. art. I, ¶ 22.
In Means, our Supreme Court addressed the question whether the violation of a victim's statutory rights to be notified of plea negotiations, anticipated sentence, and to be present at sentencing, provided grounds for setting aside a plea agreement reached between the State and the defendant. The Court noted the constitutional constraints upon the ability of the State to withdraw from that agreement.
Generally, once an agreement is reached and the defendant pleads guilty, "[d]ue process concerns . . . inhibit the ability of the prosecutor to withdraw from a guilty plea." Those due process "concerns have mostly to do with the voluntary and knowing waiver by the defendant of constitutional rights, which is the basis for entering a guilty plea." The rights a defendant waives include the right to have a jury decide the matter, the right to counsel, and the right to cross-examine witnesses. [Means, supra, 191 N.J. at 618 (quoting State v. Warren, 115 N.J. 433, 445 (1989)) (internal citations omitted)]
The Court further noted the constraints posed by our Court Rules upon the State's ability to withdraw from a plea agreement. Id. at 620. Although the Court observed that the trial court should consider the concerns of the victim, it instructed, "the court may not impinge on a defendant's constitutional rights[,]" and held that the failure to notify the victims of the plea offer was an insufficient basis to vacate the plea agreement. Id. at 620, 622.
In this case, a specific provision of the plea agreement was that defendant would pay $15,000 in restitution as a condition of probation. The prosecutor informed the court that this condition did not preclude the victim from pursuing additional restitution through civil litigation. In seeking reconsideration of the sentence, the Church seeks to set aside the plea agreement so that it may import its civil claim against defendant into the criminal proceeding. Although the Church was denied statutory rights under N.J.S.A. 52:4B-36, the relief it sought here would have constituted a substantial encroachment upon defendant's constitutional rights and was properly denied.