State v. Bausch

• Decision Date: 10 July 1980
• Citation: 83 N.J. 425,416 A.2d 833
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Frederick BAUSCH, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 425

83 N.J. 425

416 A.2d 833

STATE of New Jersey, Plaintiff-Respondent, v. Frederick BAUSCH, Defendant-Appellant.

Supreme Court of New Jersey.

Argued April 22, 1980.

Decided July 10, 1980.

David L. Kervick, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

Miriam Kahan Brody, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., New Jersey attorney).

The opinion of the Court was delivered by

SCHREIBER, J.

The grand jury indictment charged defendant Frederick Bausch with three counts. The first alleged that on April 24, 1977 he broke into the building of Walter Carpets in Linden with an intent to steal, contrary to the provisions of N.J.S.A. 2A:94-1. The second count asserted that on that occasion he stole property belonging to Walter Carpets having a value of more than $500, such act being in violation of N.J.S.A. 2A:119-2(a). The last count stated that between September 1976 and April 1977, defendant and a Leon Marowitz embezzled property of Walter Carpets, their employer, contrary to N.J.S.A. 2A:102-5.

Defendant pleaded not guilty to all counts of the indictment. On January 30, 1978, pursuant to an arrangement, he retracted his pleas and pleaded guilty to Counts 1 and 2. At the hearing he explained that he broke into the side window of Walter Carpets, turned off the alarm and then drove his van in the back of the building. He had started to pull carpets out of the racks when the police arrived and subsequently apprehended him. The rugs which he attempted to steal were worth about $1,000.

The Assistant Prosecutor recommended that any sentences imposed for Counts 1 and 2 run concurrently. It was also apparently understood that Count 3 would be dismissed. The Assistant Prosecutor also told defendant that the trial court would receive a presentence report from the Probation Department, that the court would review the report before sentencing, and that the court "may impose any sentence that (it) deems appropriate within the confines of the law." The trial court accepted the guilty pleas to Counts 1 and 2.

Bausch was sentenced on February 24, 1978. Noting that the 25-year-old defendant had no prior record and that he had cooperated with law enforcement authorities, the trial court sentenced defendant on Count 1 to an indeterminate term in the Youth Correctional Complex and imposed a fine of $250. The term was suspended and defendant was placed on probation for five years. A special condition of probation was that defendant make restitution to Walter Carpets of $3,448. This represented one-half of the losses Walter Carpets claimed it had suffered as a result of the embezzlements in Count 3. The restitution and fine were to be paid during the probationary period. The same sentence was imposed on Count 2, the terms and probation periods to be concurrent. Count 3 was dismissed. The final written judgment, however, provided that the restitution of $3,448 was a special condition only under the Count 1 sentence. The total fine was $500.

Defendant moved for reconsideration of the sentence. In oral argument on March 23, 1978, defense counsel contended that the restitution condition was invalid because the embezzlement count had been dismissed. He maintained that Bausch pleaded guilty to breaking and entry (Count 1) and larceny (Count 2) in order to eliminate the embezzlement charge with its accompanying possibility of restitution. It was for that reason defendant had pleaded guilty to two high misdemeanors and bargained for dismissal of a misdemeanor (embezzlement). Finally, counsel argued there had been no hearing or factual basis shown justifying the dollar amount fixed or establishing defendant's ability to pay.

The Assistant Prosecutor did not deny knowledge of defendant's motive in seeking a dismissal of the embezzlement count. Instead, the Assistant Prosecutor argued that restitution was authorized under N.J.S.A. 2A:168-2 and that the presentence report contained a factual basis for the amount of restitution.

The trial court denied the motion for sentence reconsideration. Holding that the power to order restitution existed, it commented that defendant in a statement to the police had admitted that he and Marowitz had taken 14- or 15-foot rolls of rugs on at least ten occasions, sold them and split the proceeds. The employer's inventory loss attached to the presentence report set forth a loss of $6,896. Thus, the trial court concluded a factual basis existed for the restitution.

The Appellate Division affirmed the judgments of conviction and the sentences, but remanded for reconsideration of the amount of restitution and the conditions of repayment in light of our decisions in State in the Interest of D.G.W., 70 N.J. 488, 361 A.2d 513 (1976), and State v. Harris, 70 N.J. 586, 362 A.2d 32 (1976). 171 N.J.Super. 314, 408 A.2d 1085 (App.Div.1979). The Appellate Division held that restitution could properly include the losses covered in Count 3, which had been dismissed, because defendant had signed a statement admitting thefts on prior occasions. It rejected defendant's argument that the restitution condition violated his plea agreement. The Appellate Division noted that defendant's understanding that he would not be subjected to restitution had not been communicated to the trial court. We granted defendant's petition for certification. 82 N.J. 289, 412 A.2d 795 (1980).

Authority to require restitution as a condition of probation is found in N.J.S.A. 2A:168-2 which states that:

The court shall determine and may, at any time, modify the conditions of probation, and may, among others, include any of the following: That the probationer . . . shall make reparation or restitution to the aggrieved parties for the damage or loss caused by his offense . . . . (emphasis supplied)

The only offense to which the statute refers is the offense for which defendant was convicted. It would seem that the "aggrieved parties" refers to the victims of the crime involved. Further, N.J.S.A. 2A:168-2 must be read together with N.J.S.A. 2A:168-1 ¹ which authorizes the courts to place a defendant on probation after conviction or a plea of guilty or non vult "for any crime or offense." The latter statute relates offense to the particular incident forming the factual basis of the offense of which the defendant has been convicted. The reference to the offense in N.J.S.A. 2A:168-2 would reasonably appear to be to the same incident. Counsel have not brought to our attention any decisions construing the word "offense" in N.J.S.A. 2A:168-2 differently and our own research has disclosed none. Similarly worded statutes in other states have been construed in the same manner. See, e. g., Fresneda v. Florida, 347 So.2d 1021 (Fla.Sup.Ct.1977) ("reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court." Fla.Stat. § 948.03(g)). Our interpretation is consonant with the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq. That act provides that when a court suspends imposition of a sentence on a person "who has been convicted of an offense," it may as a condition of its order placing a defendant on probation require the defendant "(t)o make restitution of the fruits of his offense . . . ." N.J.S.A. 2C:45-1(b)(8). Again the language refers to the offense for which the defendant had been convicted. See N.J.S.A. 2C:1-5 abolishing common law crimes and stating that "no conduct constitutes an offense unless the offense is defined by this code or another statute of this State."

The State contends that, though N.J.S.A. 2A:168-2 does not explicitly authorize a trial court to impose as a condition of probation restitution for the value of goods unrelated to the offense of which the defendant is guilty, courts have the inherent power to do so. This position is founded on the principle that suspension of sentence and ordering probation are judicial functions, and the judiciary is not necessarily limited by the legislative standards in fashioning remedies in criminal matters.

In State v. Carter, 64 N.J. 382, 316 A.2d 449 (1974), we commented:

The court's power to fashion remedies in the realm of criminal justice is unquestioned. At common law, courts of criminal jurisdiction had the power to suspend sentences. In re Baer, 140 N.J.Eq. 571, 573 (55 A.2d 248) (E. & A. 1947). Probation has a deep-rooted common law basis. The enactment of a statute relating to a particular aspect of probation does not preempt the entire field. Lathrop v. Lathrop, 57 N.J.Super. 532, 538-539, (155 A.2d 106) (App.Div.1959). It follows that a statute neglecting to mention probation would certainly not preempt the court's ability to provide for it. (Id. at 392, 316 A.2d at 455)

See also State v. Leonardis, 73 N.J. 360, 369-370, 375 A.2d 607 (1977).

In Adamo v. McCorkle, 13 N.J. 561, 100 A.2d 674 (1953), cert. den. 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1080 (1954), Justice Jacobs reviewed the history of the use of probation in our criminal jurisprudence. He concluded:

Notwithstanding the doubts which may be expressed as to its basis in English common law, there is little question that the practice of suspending sentence during good behavior long antedated statutory authority in our State and elsewhere. (Id. at 564, 100 A.2d at 675, citations omitted)

New Jersey courts could and did impose terms and conditions accompanying the suspension of sentence and probationary term prior to enactment of the first act relating to probation, L. 1900, c. 102. ² See State v. Addy, 43 N.J.L. 113 (Sup.Ct.1881). In In re Baer, 140 N.J.Eq. 571, 55 A.2d 248 (E. & A. 1947), the Court of Errors and Appeals wrote:

There is no doubt that, at common law, courts of criminal jurisdiction had the power to and did suspend sentences. The weight of authority and our courts recognize the inherent power of the courts to suspend sentences...