State v. Kennedy

• Decision Date: 05 February 1998
• Citation: 705 A.2d 757,152 N.J. 413
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Joseph KENNEDY, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 413

152 N.J. 413

705 A.2d 757

STATE of New Jersey, Plaintiff-Appellant, v. Joseph KENNEDY, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 21, 1997.

Decided Feb. 5, 1998.

Henry L. Warner, Assistant Prosecutor, for plaintiff-appellant (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney).

Michael A. Gill, Atlantic City, for defendant-respondent (Goldenberg, Mackler & Sayegh, attorneys).

Carol M. Henderson, Deputy Attorney General, for amicus curiae, Attorney General of New Jersey (Peter Verniero, Attorney General, attorney).

The opinion of the Court was delivered by

POLLOCK, J.

The basic issue is whether N.J.S.A. 2C:20-8 authorizes a municipal court to order restitution from the defendant who pleads guilty to meter tampering in violation of N.J.S.A. 2C:20-8(c). Defendant, Joseph Kennedy pled guilty in the Atlantic City municipal court to tampering with the gas meter at four income producing properties that he owned in Atlantic City. The municipal court sentenced defendant to five years probation, a $500 fine, and court costs. It also ordered defendant to pay to South Jersey Gas Company (South Jersey Gas) restitution of $15,049.21 for natural gas provided to those properties. The Law Division vacated the restitution order and remanded the matter to the municipal court "for an assessment of restitution apart from that related to the services obtained." The Appellate Division affirmed, 295 N.J.Super. 364, 685 A.2d 55 (1996). We granted certification, 149 N.J. 35, 692 A.2d 49 (1997), and now reverse and remand to the municipal court.

I.

On June 20, 1995, South Jersey Gas filed a complaint in the Atlantic City municipal court accusing defendant of meter tampering between August 2, 1989, and April 5, 1995, contrary to N.J.S.A. 2C:20-8(c). Defendant entered a plea of guilty. In pleading, he answered questions posed by defense counsel and the court. Before defendant pled, defense counsel informed him that the State was seeking, in addition to the fine for meter tampering, restitution in the amount of $15,049.21. Counsel advised defendant that in counsel's opinion the State could not obtain restitution for meter tampering, as distinguished from theft of services.

When entering his plea, defendant admitted that he owned four income-producing properties in Atlantic City, that he had tampered with the meter serving those properties, and that, unknown to South Jersey Gas, he had received gas through the use of the tampered meter.

Immediately after defendant pled, his counsel argued that under State v. Insabella, 190 N.J.Super. 544, 464 A.2d 1165 (App.Div.1983), the court could not order restitution because defendant had pled guilty only to meter tampering and not to theft of services. The court rejected the argument and ordered defendant to pay $15,049.21 in restitution.

On defendant's appeal, the Superior Court, Law Division, held that the receipt and value of the gas were not elements of the meter tampering offense to which defendant pled guilty. Consequently, the Law Division found that defendant's plea did not support an order for restitution under N.J.S.A. 2C:20-8(k) (Section 8(k)). Limiting the State to restitution for damage to the meter, the Law Division remanded the matter to the municipal court for a hearing regarding that damage. Additionally, the court noted that South Jersey Gas could file a civil action for reimbursement for the stolen gas.

The State appealed to the Appellate Division contending that Section 8(k) permits a court to order a defendant convicted of meter tampering to pay restitution for services obtained. State v. Kennedy, 295 N.J.Super. 364, 366, 685 A.2d 55 (App.Div.1996). The Appellate Division recognized that Section 8(k) subjects a defendant convicted of meter tampering to restitution. 295 N.J.Super. at 367, 685 A.2d 55. It held, however, that it could not order restitution absent proof of a "link" between defendant's meter tampering and South Jersey Gas's loss. Ibid. Specifically, the Appellate Division noted that Section 8(k) authorizes restitution from a defendant who is convicted of theft of services along with meter tampering or from one who acknowledges when pleading guilty to meter tampering that he or she has obtained utility services unlawfully. Ibid. Because defendant's guilty plea to meter tampering did not acknowledge theft of services, the court held that the plea did not provide a basis for the municipal court's restitution order. Noting South Jersey Gas's ability to pursue a civil action against defendant, the Appellate Division affirmed the judgment of the Law Division.

II.

The first two sections of N.J.S.A. 2C:20-8 criminalize the general offense of "Theft of Services." One provision defines "theft" as an act in which a person "purposely obtains services which he knows are available only for compensation, by deception or threat, or by false token, slug, or other means...." N.J.S.A. 2C:20-8(a); see State v. Kocen, 222 N.J.Super. 517, 537 A.2d 731 (App.Div.1988). Another provision defines a "theft" as an act in which a person who has "control over the disposition of services of another, to which he is not entitled, ... knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto." N.J.S.A. 2C:20-8(b). The third provision, to which defendant pled guilty, specifically defines the offense of meter tampering:

Any person who, without permission and for the purpose of obtaining electric current, gas or water with intent to defraud any vendor of electricity, gas or water or a person who is furnished by a vendor with electric current, gas or water:

(1) Connects or causes to be connected by wire or any other device with the wires, cables or conductors of any such vendor or any other person; or

(2) Connects or disconnects the meters, pipes or conduits of such vendor or any other person or in any other manner tampers or interferes with such meters, pipes or conduits, or connects with such meters, pipes or conduits by pipes, conduits or other instruments--is guilty of a disorderly persons offense.

....

[ N.J.S.A. 2C:20-8(c).]

Defendant asserts that Section 8(k) authorizes restitution only with a conviction for theft of services. He argues that, because he pled guilty to meter tampering under N.J.S.A. 2C:20-8(c), and not to theft of services under N.J.S.A. 2C:20-8(a) or (b), the court could not order him to pay restitution.

Section 8(k), which provides the statutory basis for a restitution order, applies to both theft of services and meter tampering. It states:

In addition to any other disposition authorized by law, and notwithstanding the provisions of N.J.S. 2C:43-3, every person who violates this section shall be sentenced to make restitution to the vendor and to pay a minimum fine of $500.00 for each offense. In determining the amount of restitution, the court shall consider the costs expended by the vendor, including but not limited to the repair and replacement of damaged equipment, the cost of the services unlawfully obtained, investigation expenses, and attorney fees.

When interpreting a statute, our duty is to determine the intent of the Legislature. Jacobitti v. Jacobitti, 135 N.J. 571, 579-80, 641 A.2d 535 (1994). The first step is to examine the plain language of the statute. Lammers v. Board of Educ., 134 N.J. 264, 267, 633 A.2d 526 (1993). The plain language of Section 8(k) mandates every person who violates N.J.S.A. 2C:20-8 to be sentenced to make restitution. By pleading guilty to tampering with a gas meter contrary to N.J.S.A. 2C:20-8(c), a defendant is subject to an order of restitution as a matter of law. The Senate Judiciary Committee statement confirms the plain meaning of the 1989 amendments:

The intent of the bill was to have its mandatory restitution and minimum fine provisions apply to any offense under N.J.S.A. 2C:20-8. As drafted, these provisions apply to those sections of N.J.S.A. 2C:20-8 applicable to specific services but do not apply to subsection a. and b. of N.J.S.A. 2C:20-8 which deal generally with theft of services. The amendments clarify that mandatory restitution and the $500 minimum fine apply to all offenses committed under N.J.S.A. 2C:20-8.

We conclude that the Legislature intended that a defendant, by pleading guilty to meter tampering, would be subject to Section 8(k)'s requirement of mandatory restitution.

In seeking to avoid the obligation to make restitution, defendant relies on State v. Insabella, supra, 190 N.J.Super. 544, 464 A.2d 1165. Insabella was decided, however, six years before the enactment of the 1989 amendments to N.J.S.A. 2C:20-8. In Insabella, supra, the Appellate Division distinguished between the provisions for meter tampering and theft of services in the then-existing version of N.J.S.A. 2C:20-8. 190 N.J.Super. at 549-50, 464 A.2d 1165. The court held that the inclusion of the two types of offenses "under the heading 'Theft of Services' was merely for convenience," id. at 550, 464 A.2d 1165, and did not indicate the legislative intent to require restitution for convictions of meter tampering. Id. at 550, 552, 464 A.2d 1165. Absent the legislative intent to impose restitution for meter tampering, a court could order restitution only if it was "directly related to the offense committed." Id. at 552, 464 A.2d 1165. Thus, the defendant in Insabella, who had pled guilty only to meter tampering without acknowledging the receipt of any electricity, was not subject to an order to pay restitution. Id. at 550-51, 464 A.2d 1165.

In the present case, defendant's reliance on Insabella, ignores the effect of the 1989 amendment adding Section 8(k). As noted, one of the Legislature's objectives in amending N.J.S.A. 2C:20-8 was to mandate the imposition of restitution as a sentence for all violations of the statute. In brief, the 1989 amendment implicitly overruled Insabella 's holding that convictions for meter tampering and theft of services ...