September 12, 2017
appeal from Superior Court of New Jersey, Law Division,
Gloucester County, Indictment No. 16-01-0001.
A. Nicodemo, Deputy Attorney General, argued the cause for
appellant (Christopher S. Porrino, Attorney General,
attorney; Mr. Nicodemo, of counsel and on the brief).
B. Herrera, Assistant Deputy Public Defender, argued the
cause for respondent (Joseph E. Krakora, Public Defender,
attorney; Ms. Herrera, of counsel and on the brief).
Judges Fisher, Fasciale and Moynihan.
State of New Jersey appeals from the sentencing judge's
order denying its request to enter, as part of the plea
agreement reached between it and defendant, a civil consent
judgment for restitution due the victims of defendant's
theft, and from an order denying reconsideration. We agree
with the sentencing judge that he was without statutory
authority to enter the judgment and affirm.
pleaded guilty to an amended charge of third-degree theft by
unlawful taking, N.J.S.A. 2C:20-3(a), admitting he took $85,
131.18 in benefits directly deposited in his deceased
mother's bank account after her death. The victims of the
theft were two pension funds and the United States Social
Security Administration. The State recommended that, as part of
the plea agreement, defendant pay restitution in the full
amount due all victims, a payment schedule be set through
probation, and the judge enter a civil consent judgment in
favor of the victims.
Kevin T. Smith entered the plea but expressed reservations
about his ability to order the entry of a civil consent
judgment. Prior to sentencing the State argued, inasmuch as
N.J.S.A. 2C:44-2(f) provides that an order of restitution
imposed by a sentencing judge does not bar the victim from
seeking civil remedies, a sentencing judge is not precluded
from entering a civil consent judgment to prevent the
victim's incurrence of further expense in pursuit of a
civil recovery. Defendant took no position.
Smith, in a written opinion, rejected the State's
interpretation of N.J.S.A. 2C:44-2(f), holding that the
Legislature intended that civil remedies be pursued in a
civil court; the Legislature did not provide for recovery
through the criminal sentencing process. The judge also took
issue with the ethical propriety of requiring defendant to
agree to a civil consent judgment as part of a plea
agreement. He concluded it was "improper for the State
to threaten criminal prosecution to get an upper hand in a
civil matter, " citing RPC 3.4(g). The State
argued in a motion for reconsideration that N.J.S.A. 2C:4
3-2(d) allowed "the court to . . . impose any . . .
civil penalty" conferred by law at sentencing. Judge
Smith again disagreed, ruling the penalties that may be
imposed under that statute are those provided in the New
Jersey Code of Criminal Justice (the Code), such as
forfeiture of public office and limitation on Internet
access, but a civil consent judgment was not included among
appeal, the State contends that the judge erred because the
Code "clearly sets forth authority for a sentencing
court to impose civil penalties at sentencing, " and
that a civil consent judgment is "a lawful means"
conferred by law to ensure remuneration of victims
"above and beyond an order of restitution." The
State also submits the entry of a consent judgment
"raises no ethical considerations." Defendant
counters that the judge was without authority to enter the
judgment because a civil consent judgment "is a
contractual agreement and not a 'penalty.'"
determining the propriety of entering civil consent judgments
in favor of crime victims at sentencing, it is necessary to
analyze the applicable statutory provisions. We owe no
deference to the sentencing judge's legal interpretation
of those statutes, a purely legal issue, and conduct our
review de novo. State v. Buckley, 216 N.J. 249,
260-61 (2015); Manalapan Realty LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
task in statutory interpretation is to determine and
effectuate the Legislature's intent." Bosland v.
Warnock Dodge, Inc., 197 N.J. 543, 553 (2009).
The Supreme Court recognized the statutory directive we
utilize to explicate a legislative enactment:
In the construction of the laws and statutes of this state,
both civil and criminal, words and phrases shall be read and
construed with their context, and shall, unless inconsistent
with the manifest intent of the legislature or unless another
or different meaning is expressly indicated, be given their
generally accepted meaning, according to the approved usage
of the language.
[State v. Gandhi, 201 N.J. 161, 177 (2010) (quoting
look first to the plain language of the statute, seeking
further guidance only to the extent that the
Legislature's intent cannot be derived from the words
that it has chosen." Pizzullo v. New Jersey Mfrs.
Ins. Co., 196 N.J. 251, 264 (2008). If the statutory
language is ambiguous, we turn to extrinsic evidence from
"a variety of sources . . . [c]entral among [which] is a