NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-01-0008.
Wronko & Loewen, attorneys for appellant (James R. Wronko, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (William A. Guhl, Assistant Prosecutor and Cameron MacLeod, on the brief).
Before Judges Lihotz and Ostrer.
Defendant, Angelo Crincoli pleaded guilty, pursuant to a negotiated plea agreement, to amended third-degree charges of theft by deception, N.J.S.A. 2C:20-4 and theft by failure to make required deposit, N.J.S.A. 2C:20-9. The charges resulted from his operation of a landscaping business where he collected deposits but never performed the work. He was sentenced to three years probation, conditioned on defendant serving 364 days in the county jail. In addition to applicable monetary fines and penalties, the judge imposed, as a special condition of his probationary sentence, an order requiring defendant to pay $97, 000 restitution.
On May 23, 2011, probation services moved for review of defendant's compliance regarding several indictments and other matters. At the time of this hearing, defendant was fully compliant with all terms of probation. However, he had not yet repaid the ordered restitution. The reviewing judge ordered probation extended "until all monies due and owing are paid and all other conditions of probation have been completed." The extended term was to end by June 12, 2013 on Indictment No. 06-01-00008 and August 26, 2013 on Indictment No. 08-03-00308. The order also stated: "All conditions of probation remain in effect during the extended period."
Defendant was charged with a violation of probation (VOP), after being arrested for the disorderly persons offense of engaging in deceptive business practices and failing to register with the Division of Consumer Affairs, on January 14, 2011. He pled guilty and was sentenced to three years imprisonment on June 29, 2012. The judge stayed the imposition of his sentence pending appeal.
In a single argument, defendant asserts:
DEFENDANT CANNOT BE SENTENCED TO STATE PRISON.
On appeal, defendant maintains probation was extended, pursuant to N.J.S.A. 2C:45-2c, solely to allow it to collect the amount of restitution imposed, and therefore the violation which occurred after his originally imposed probationary sentence had concluded, cannot result in a term of imprisonment. The State argues all terms of probation were properly extended during the two-year period and defendant consented to the entered order. Moreover, the State contends defendant's claim is untimely, lacks merit, was waived as he did not appeal from the order and cannot now attack its provisions. Because restitution was a special condition of probation, the State asserts the extension was proper until payment was made in full.
Initially we note sentencing of a criminal defendant is guided by N.J.S.A. 2C:43-2. Other statutes detail the framework to implement these sentences. N.J.S.A. 2C:43-2b(2) permits the use of a probationary sentence, and a period of "imprisonment for a term fixed by the court not exceeding 364 days to be served as a ...