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State v. Masce

Superior Court of New Jersey, Appellate Division

November 16, 2017

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
NICHOLAS MASCE, Defendant-Respondent.

          Argued September 12, 2017

         On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 16-01-0001.

          John A. Nicodemo, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Mr. Nicodemo, of counsel and on the brief).

          Jaime 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).

          Before Judges Fisher, Fasciale and Moynihan.

          OPINION

          MOYNIHAN, J.S.C.

         The 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.

         Defendant 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.[1] 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.

         Judge 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.

         Judge 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 those penalties.

         On 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.'"

         In 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).

         "Our 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 N.J.S.A. 1:1-1).]

         "[W]e 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 ...


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