State v. DeAngelis

• Decision Date: 06 March 2000
• Court: New Jersey Superior Court
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Armand A. DeANGELIS, Defendant-Appellant.

747 A.2d 289

329 N.J. Super. 178

STATE of New Jersey, Plaintiff-Respondent, v. Armand A. DeANGELIS, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued January 10, 2000.

Decided March 6, 2000.

Michele A. Querques, Middletown, for defendant-appellant (Giordano, Halleran & Ciesla, and Michael L. Addicott of the Florida bar, Hollywood, FL, admitted pro hac vice, attorneys; Ms. Querques, Richard L. Friedman, Middletown and Mr. Addicott, on the brief).

Jordana Jakubovic, Deputy Attorney General, for plaintiff-respondent (John J. Farmer, Jr., Attorney General, attorney; Ms. Jakubovic, of counsel and on the brief).

Before Judges HAVEY, KEEFE and COLLESTER.

The opinion of the court was delivered by HAVEY, P.J.A.D.

The central issue raised by this appeal is whether a defendant, convicted of a crime and subject to a restitution order, is absolved from the terms of restitution by settling with the victim in a civil action arising out of the same facts which formed the basis of the criminal conviction. On defendant's motion to vacate the restitution order, Judge Hoffman concluded that the settlement agreement and release given to defendant by the victim were not binding upon the court or the State, reasoning that the State and judicial system have an interest in restitution separate and apart from simply compensating the victim. Accordingly, the judge held that "a private agreement to extinguish restitution is contrary to the public policy of this state and thus is void." We agree and accordingly affirm.

A jury found defendant guilty of four counts of misapplication of entrusted property, N.J.S.A. 2C:21-15, and five counts of unlawful offer, sale or purchase of securities, N.J.S.A. 49:3-52 and N.J.S.A. 49:3-70(a). Defendant was sentenced to an aggregate ten-year period of probation, conditioned upon defendant serving two weeks in jail and fulfilling the terms of a restitution order. Under the order dated June 29, 1993, the State and defendant stipulated to the total damages for each victim as follows:

Paul Zito $ 1.1 million Barbara Gabriel $ 46,940.00 Steven Siperstein $ 22,000.00 Salvatore Mendola $ 43,000.00 Delores and Michael Magnifico $ 19,000.00

The order requires defendant to make restitution in the amount of $1.1 million with "minimum payment" as follows: (1) monthly payments by defendant in the amount of $2,000 to the Middlesex County Probation Department for a period of ten years, and a lump-sum payment of $15,000 on or before January 1, 1994; (2) payment from two "custodia legis" funds subject to orders entered in a related civil action into the restitution fund, approximating $106,000; (3) defendant selling his Florida residence within seven years (June 29, 2000), with all of the proceeds of sale, not less than $135,000, paid into the restitutionary account; (4) each of the five victims receiving $10,000 once the restitutionary account totaled $50,000, with the remainder of the money being paid to them on a pro rata basis; and (5) payment by defendant "by the end of his probationary period, any sums of money which were contemplated by this order but were not made available, with the exception of the monthly payments and the lump sum payment due in January, 1994." The order further provided that defendant would be entitled to a credit against his restitutionary obligation to the extent that the individual victims receive payment from defendant "through any other judgement or source emanating from [defendant]."

On August 2, 1993, victim Paul Zito and several relatives (referred to collectively as "Zito"), obtained a civil judgment against defendant in the amount of $1.6 million predicated on the same misconduct which gave rise to defendant's criminal convictions. Zito recorded this judgment in Florida, where defendant resided and began proceedings to enforce it.

On April 12, 1995, Zito and defendant signed a forbearance agreement under which Zito agreed "to forbear from exercising any rights or remedies which it may have to collect on the Indebtedness...." In return, defendant agreed to: (1) pledge to Zito all his stock in U.S. Coin Exchange, Inc. (a company owned by defendant) to secure the indebtedness; (2) grant Zito a lien on a 1991 Porsche Carrera, securing the sum of $12,500; (3) deliver to Zito a mortgage on defendant's Florida property (as delineated in the restitution order), securing a nonrecourse note in the amount of $120,000; and (4) list the Florida property for sale and, if sold, to pay the proceeds into the restitutionary account. Defendant also agreed to turn over certain personal property to Zito.

Additionally, defendant agreed to "[c]omply with all terms and conditions of the Restitution Order ... and perform all actions required under the Restitution Order...." The agreement provided:

DeAngelis and U.S. Coin understand and agree that ... [nothing] in this Agreement is intended to or should be construed to diminish DeAngelis' obligations as presently required under the Restitution Order to make periodic restitution payments to the Middlesex County Probation Department ("Periodic Restitution Payments") all of which shall survive the execution of this Agreement, the occurrence of the Latest Termination Date, and the delivery of the documents described above. Provided no Actionable Event has occurred, the Zitos agree to not seek or obtain a modification, amendment, or alteration of the Restitution Order the effect of which would increase the amount of the Periodic Restitution Payments beyond the amount and duration currently set forth in the Restitution Order. The Zitos agree that upon their execution of the satisfactions of the Judgment and Stipulated Final Judgment as provided in this Section, the Zitos relinquish any further claim to restitution under the Restitution Order other than their pro rata share of the Periodic Restitution Payments.

[Emphasis added.]

On or about May 17, 1996, defendant paid Zito $123,300 pursuant to the terms of the agreement, and turned over certain personal property. On June 25, 1997, defendant and Zito signed a settlement agreement in which Zito agreed to deliver to defendant a satisfaction of judgment and release. Zito released defendant

from any and all ... action and actions, cause and causes of action, ... claims,... damages, debts, demands, ... executions, judgments, liability, ... sums of money, ... whatsoever, regardless of whether at law or in equity or under federal, state, foreign or other law ... arising out of or in connection with, any one or more of the following: ....

[Emphasis added.] The "following" referred to specific pledge, security and mortgage agreements, a promissory note, and the civil action against DeAngelis.

On May 20, 1996, defendant made a lump-sum payment into the restitutionary account of $195,340, apparently representing the proceeds from the sale of his Florida house. As of that date, defendant had paid a total of $395,093.51 into the account.

Defendant thereafter filed the instant motion in the Law Division, Criminal Part, to declare his restitution obligation to Zito satisfied. During the hearing on this motion, the parties stipulated that the amount defendant had paid Zito in settlement of the civil suit was $132,150.

Judge Hoffman denied defendant's motion, reasoning that the forbearance and settlement agreements entered into by Zito and defendant were not binding upon him in the criminal matter, where Zito was not a party. The judge stated that the State and the judicial system have interests in restitution separate from that of merely compensating the victim. "[T]he State has an interest in rehabilitating the offender, and the court has [an] interest in seeing that its sentences are carried out." The judge concluded, "a private agreement to extinguish restitution is contrary to the public policy of this state and is thus void." Nevertheless, defendant was credited with $132,150 toward his restitutionary obligation to Zito, which represented "money actually paid or the value of property actually transferred to Dr. Zito or his representatives" pursuant to the settlement agreement.

I

Defendant contends that the civil settlement between himself and Zito absolved him of any further restitutionary obligation toward Zito, as required by defendant's criminal sentence.

N.J.S.A. 2C:44-2b provides that the court "shall sentence a defendant to pay restitution ... if: (1) The victim ... suffered a loss; and (2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution." The restitution paid to the victim "shall not exceed the victim's loss...." N.J.S.A. 2C:43-3. There was no challenge to the restitution order here on the basis that: (1) Zito had not suffered a loss; (2) defendant was unable to pay the restitution amount; or (3) the amount ordered exceeded Zito's loss.

The Code of Criminal Justice recognizes that the civil law provides another avenue through which a victim of a crime may seek recompense from the defendant. N.J.S.A. 2C:44-2(f) provides:

The ordering of restitution pursuant to this section shall not operate as a bar to the seeking of civil recovery by the victim based on the incident underlying the criminal conviction. Restitution ordered under this section is to be in addition to any civil remedy which a victim may possess, but any amount due the victim under any civil remedy shall be reduced by the amount ordered under this section to the extent necessary to avoid double compensation for the same loss, and the initial restitution judgment shall remain in full force and effect.

[Emphasis added.]

Thus, in order to prevent double recovery by the victim, the statute provides for a credit against the amount due under the civil remedy for the amount paid under the restitution order.

Here, defendant is not merely arguing that "any amount due [Zito] under [the settlement agreement should] be reduced by the amount ordered" for restitution. I...