NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...