August 6, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CRAIG MALTESE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 09-01-0001.
Elias L. Schneider, attorney for appellant.
John J. Hoffman, Acting Attorney General, attorney for respondent (Pearl Minato, Deputy Attorney General, of counsel and on the brief).
Before Judges Ostrer and Hayden.
Defendant appeals from the trial court's order denying his motion to terminate his obligation to pay $35, 000 in restitution, ordered as part of a judgment of conviction.
We discern from the sparse record that defendant pleaded guilty to a one-count accusation charging third-degree conspiracy, which apparently related to a theft, although the accusation did not so specify. The accusation does not identify the victim of the theft. Although we have neither the plea transcript nor the judgment of conviction, the plea agreement, which was provided to us, indicates defendant agreed to pay $35, 000 in restitution and agreed to provide truthful testimony against Timothy Vaughn.
According to the State's brief, unsupported by any cognizable evidence in the record, defendant was a target in a State criminal investigation regarding theft of New Jersey Schools Construction Corporation public funds. Defense counsel, on the other hand, certified below — without any apparent basis grounded in personal knowledge — that defendant "plead [sic] guilty to a criminal accusation which charged him with what was essential [sic] a criminal kick-back which he initially believe [sic] to be a legal finders fee[.]"
Defendant was also a named defendant in a civil action, C.I.N. Construction, LLC v. Hunt Construction Group, Inc., Timothy Vaughan and Craig Maltese, No. ESX-L-9337-07, which he argues was related to his criminal prosecution. He was ultimately dismissed as a party. The record also includes a letter from counsel to Hunt Construction Group, Inc. (Hunt) stating that the civil action was resolved pursuant to a confidential settlement agreement.
Defendant sought the details of the settlement from Hunt's counsel, to no avail. He thereafter filed a motion in March 2012 with the Criminal Part to terminate his obligation to pay restitution, and to return any monies previously paid. According to a February 2012 Comprehensive Enforcement Program order, defendant owed $31, 691, although it is unclear what portion of that included unpaid fines and fees, as opposed to unpaid restitution.
In support of his motion, defendant argued that the confidential settlement in the civil action could result in a double recovery by C.I.N. Construction. Although he conceded he could not establish that fact, in the absence of the settlement agreement, he implied it was the victim's obligation to establish it was not overcompensated. Inasmuch as it failed to do so, defendant argued restitution should be terminated to avoid double recovery, citing N.J.S.A. 2C:43-3h, which states that "[t]he restitution ordered paid to the victim shall not exceed the victim's loss."
Judge Bradley J. Ferencz denied the motion to modify defendant's sentence. In a September 4, 2012 order, the court directed defendant to continue paying restitution, which the court orally indicated would be remitted to Probation. To avoid double recovery, the court ordered that C.I.N. Construction "shall not accept any monies over and above the $35, 000.00 owed[.]" The court also ordered that if the harm defendant caused has been compensated by a third party — such as an insurer or a party to a confidential settlement — then defendant's restitution should be paid to that third party. The order also provided that "if a dispute arises between the parties as to what was paid in the Confidential Settlement, " then the aggrieved party should apply for relief from the Law Division, Civil Part.
Defendant appeals from Judge Ferencz's order, essentially renewing the arguments he made to the trial court. We affirm.
We discern no basis in our Court Rules to authorize the court to modify defendant's sentence, to vacate restitution and refund payments made. Motions to change sentence must be filed within sixty days of entry of the judgment of conviction, unless it meets one of the exceptions set forth in Rule 3:21-10(b):
A motion may be filed and an order may be entered at any time (1) changing a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant, or (3) changing a sentence for good cause shown upon the joint application of the defendant and prosecuting attorney, or (4) changing a sentence as authorized by the Code of Criminal Justice, or (5) correcting a sentence not authorized by law including the Code of Criminal Justice, or (6) changing a custodial sentence to permit entry into the Intensive Supervision Program, or (7) changing or reducing a sentence when a prior conviction has been reversed on appeal or vacated by collateral attack.
None of the exceptions apply in this case. We recognize that N.J.S.A. 2C:43-3h bars payment of restitution in excess of a victim's loss. But, there is no evidence that the sentence was unauthorized by the Code when it was imposed. Nothing in the Rule authorizes a court to modify a sentence to vacate a restitution order to avoid double recovery, based on alleged subsequent payments from third parties. One may presume that third parties that might also be obliged to compensate an injured party — whether it is an insurer or a jointly and severally liable tortfeasor — would take appropriate steps to avoid over-compensating the victim. A defendant may be required to pay restitution to such third parties. See State v. Hill, 155 N.J. 270, 277 (1998) (holding that restitution statute authorizes payment to third parties, such as insurers or others, who compensate crime victim for losses suffered as a result of defendant's conduct). Judge Ferencz's order appropriately assured that payments from defendant, which were to be made through Probation, would be directed to such third parties if the victim has already been made whole as a result of their payments.
We also recognize that a court on motion may modify a requirement of probation. N.J.S.A. 2C:45-2. However, the Criminal Code mandates that a sentencing court require a defendant, as a condition of probation, to pay restitution. N.J.S.A. 2C:45-1c. Reading the two provisions together, we are not prepared to construe N.J.S.A. 2C:45-2 to grant a court the discretion to relieve a defendant of an obligation that N.J.S.A. 2C:45-1c mandates he perform. In any event, the most N.J.S.A. 2C:45-2 would apparently authorize the court to do is modify the obligation to the extent it serves as a requirement of probation. However, the obligation to pay restitution has a status independent of probation.
Moreover, there is no factual basis in the record before us to conclude that the victim of defendant's crime was likely to receive a double recovery. Defendant provides no information regarding the basis for the restitution amount. He has not provided us with his plea transcript, his pre-sentence report, or any other document that would illuminate the details of his crime and the nature of the harm he inflicted upon the victim. In particular, we have no information that his $35, 000 obligation would have made the victim whole, or whether it represents a small portion of the total harm inflicted.
Also, defendant has provided us with no pleadings from the civil action he asserts is related to his crime and restitution obligation. Therefore, we have no basis to conclude that the claims in that lawsuit relate to the same harm addressed in whole or in part by defendant's restitution obligation. See R. 2:6-1(a)(1) (stating that an appellant's appendix shall include "such other parts of the record . . . as are essential to the proper consideration of the issues"); cf. In re Zakhari 330 N.J.Super. 493, 495 (App. Div. 2000) (stating that an appellate court may dismiss an appeal where the failure to provide essential documents in the record precludes meaningful review).