September 13, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANGELO CRINCOLI, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 condition of probation, " which was the sentence imposed in this matter.
Further, N.J.S.A. 43-2b(1) and (4) address the imposition of an order "[t]o pay a fine or make restitution[.]" Consequently, we have observed "the order of restitution has a separate existence of its own as a criminal sentence." State v. Kemprowski, 265 N.J.Super. 471, 473 (App. Div. 1993).
The imposition of probationary sentence is discussed in N.J.S.A. 2C:45-2, which states the term of probation may not be less than one year nor exceed five years. When ordering a probationary sentence, the court may impose "reasonable conditions" as it "deems necessary to insure that [a defendant] will lead a law-abiding life or is likely to assist him to do so." N.J.S.A. 2C:45-1a. A non-exhaustive list of permissible conditions of a probationary sentence is provided in N.J.S.A. 2C:45-1b. Moreover, the statute grants the authority to impose payment of assessments and restitution, as a condition of probation. N.J.S.A. 2C:45-1c. We also consider "[t]he central purpose of restitution in the probation context is rehabilitation. . . . Justification for restitution only exists so long as rehabilitation from the defendant's guilty criminal behavior is fostered by compensation to the victim." State v. Bausch, 83 N.J. 425, 434 (1980) (citation omitted). When ordering payment of restitution the sentencing court must find "[t]he defendant is able to pay or, given a fair opportunity, will be able to pay restitution." N.J.S.A. 2C:44-2b(2). "Recognition of the ameliorating effect of restitution to the victim is historic. Its purpose has been explained varyingly in terms of aiding rehabilitation of the wrongdoer, denying a wrongdoer any fruits of the crime, compensation to the victim for financial loss, or a combination of those factors." State v. Corpi, 297 N.J.Super. 86, 92 (App. Div.), certif. denied, 149 N.J. 407 (1997) (citations omitted).
A court is also authorized to discharge the defendant from probation, N.J.S.A. 2C:45-2a and to modify or eliminate any requirement found to impose an unreasonable burden on the defendant or add further requirements, N.J.S.A. 2C:45-2b. Finally, in specific instances the court may extend probation if the ordered period of probation has ended, and
the defendant has failed. . . to fulfill the conditions imposed pursuant to subsection c. of N.J.S.[A.] 2C:45-1 [requiring payment of assessments and restitution], in which event the court shall order that the probationary period be extended for an additional period not to exceed that authorized by subsection a. of this section.
The extension may be entered by the court without the defendant's personalappearance if the defendant agrees to the extension.
This court examined the provision of N.J.S.A. 2C:45-2c in State v. De Christino, 235 N.J.Super. 291, 297-98 (App. Div. 1989), noting:
The exception was added by an amendment to subsection c. of the statute. The [c]omment to that subsection . . . [states], "The amendment to subsection c. was intended to continue a person on probation in order to allow for the payment of a fine or restitution." Cannel, Title 2C, Comment N.J.S.A. 2C:45-2c. In order to effectuate this purpose, we construe the provision to mean that the period can be extended for up to an additional five years in order to allow for payment even if the hearing for the extension is not held and the order not entered until a reasonable time after expiration of the initial term of probation. However, since the stated purpose of the exception is to allow for payment of a fine or restitution, we hold that an extension under this provision may not be used to incarcerate a probationer in circumvention of the limitation of N.J.S.A. 2C:45-3a, although probation may, of course, be revoked for a substantial violation, including willful failure to pay, occurring during the extended period. Cf. N.J.S.A. 2C:45-3a(4). See also N.J.S.A. 2C:46-1 and following which provide for the collection of fines and restitution.
This makes clear that an order for payment of restitution "'need not be coextensive with the period of probation.'" Kemprowski, supra, 265 N.J.Super. at 474 (quoting State v. Blassingale, 163 N.J.Super. 110, 116 (App. Div. 1978), certif. dismissed, 81 N.J. 48 (1979)).
Here, we are not provided with the full sentencing record, which should have included the judge's review of N.J.S.A. 2C:44-2c(2). See Bausch, supra, 83 N.J. at 433 ("When the trial court exercises its sentencing authority, it should consider all relevant circumstances and factors in fixing the terms and conditions of a sentence."). Nevertheless, it appears certain based on defendant's past employment as a tradesman, the obligation to pay $97, 000 in restitution could not possibly be repaid within three years. We are also not provided with the transcript of the May 23, 2011 hearing. However, the record does show defendant was fully compliant with all aspects of his probation, including the obligation to make restitution payments.
Contrary to the inferences sought to be drawn by defendant, the VOP was filed before the conclusion of defendant's initial probationary sentence. The probationary term imposed at sentencing expired on June 12, 2011. The VOP was filed five days prior to the conclusion of that term and related to a new charge filed on January 14, 2011. Perhaps our review would be altered had the violation occurred sometime after June 12, 2011. Since the facts are otherwise, we need not consider the question of whether a defendant whose probation is extended solely to allow payment of restitution can be subject to incarceration on a VOP if he commits a new offense during the extended probation period.
Here, the judge concluded the cited violation, that is, committing a new criminal offense, was not a technical violation but rather serious enough to justify revocation of probation. N.J.S.A. 2C:45-3a(4). See also State v. Baylass, 114 N.J. 169, 175 (1989). Thereafter, he resentenced defendant to a prison term "that might have been imposed originally for the offense of which he was convicted." N.J.S.A. 2C:45-3b. We find no error.