(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 21, 1997 -- Decided February 5, 1998
Pollock, J., writing for a unanimous Court.
The issue in this case is whether N.J.S.A. 2C:20-8 authorizes a municipal court to order restitution
from a defendant who pleads guilty to meter tampering in violation of N.J.S.A. 2C:20-8(c).
South Jersey Gas filed a complaint in the Atlantic City municipal court accusing defendant of meter
tampering contrary to N.J.S.A. 2C:20-8(c). Before defendant entered his guilty plea, he was informed that in
addition to the fine for meter tampering, the State was seeking restitution in the amount of $15,049.21.
Defense 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 tampered with the meter serving his properties
and that he had received gas through the use of the tampered meter. Defendant's counsel argued that
under State v. Insabella,
190 N.J. Super. 544 (App. Div. 1983), the court could not order restitution. 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 defendant's receipt of gas and
its value were not elements of the meter tampering offense to which defendant pled guilty. Consequently, it
found that defendant's plea did not support an order for restitution under N.J.S.A. 2C:20-8(k). The Law
Division limited the State to restitution for damage to the meter, and remanded for a hearing regarding that
damage. It also noted that South Jersey Gas could file a civil action for reimbursement for the stolen gas.
The State appealed. The Appellate Division affirmed, holding that restitution could not be ordered
because defendant's guilty plea to meter tampering did not acknowledge theft of services. It also noted
South Jersey Gas's ability to pursue a civil action against defendant. The Court granted certification.
HELD: Defendant can be ordered to pay restitution for gas service unlawfully obtained as a result of his
guilty plea to meter tampering.
1. The plain language of N.J.S.A. 2C:20-8(k) mandates that every person who violates an offense enumerated
in N.J.S.A. 2C:20-8 be sentenced to make restitution. Section 8 includes the offense of meter tampering to
which defendant pled guilty. Section 8(k) expressly requires restitution for the cost of services unlawfully
obtained. The Insabella holding relied on by defendant and the lower courts was decided prior to the 1989
amendments to N.J.S.A. 2C:20-8. Those amendments implicitly overruled Insabella and mandated restitution
for all violations of the statute. (Pp. 4-9)
2. Defendant challenges the jurisdiction of the municipal court to order restitution above $200, the threshold
for grading a theft as a disorderly persons offense. The prosecutor has discretion to charge the disorderly
persons offense of meter tampering instead of theft. On conviction of that charge, a defendant cannot be
fined more than $1,000, but the amount of restitution required under N.J.S.A. 2C:20-8(k) is not limited. On
remand, the municipal court should conduct a hearing at which the parties may present evidence regarding
South Jersey Gas's loss and defendant's ability to pay. If the court decides to award restitution, it should
explain the reasons underlying the decision. (Pp. 9-13)
3. When accepting a guilty plea to an offense that involves restitution as a consequence of sentencing, the
court should elicit a sufficient factual basis to support a defendant's guilty plea, including restitution. The
court should also explain to the defendant the sentencing consequences. Although defendant's statement
here could have been more complete, it suffices to provide an adequate basis for restitution. Defendant has
not indicated any intention to withdraw his plea. Even if he so intended, his counsel's incorrect opinion that
restitution could not be ordered for the offense of meter tampering would not provide a basis for attacking
the finality of his guilty plea. (Pp. 13-15)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the
municipal court.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE POLLOCK's opinion.
SUPREME COURT OF NEW JERSEY
A-
40 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSEPH KENNEDY,
Defendant-Respondent.
Argued October 21, 1997 -- Decided February 5, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
295 N.J. Super. 364 (1996).
Henry L. Warner, Assistant Prosecutor, argued
the cause for appellant (Jeffrey S. Blitz,
Atlantic County Prosecutor, attorney).
Michael A. Gill argued the cause for
respondent (Goldenberg, Mackler & Sayegh,
attorneys).
Carol M. Henderson, Deputy Attorney General,
argued the cause 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 (1996). We granted certification,
149 N.J. 35 (1997), and now reverse and remand to the municipal
court.
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 (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 (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. 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.
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 (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.
. . . .
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
(1994). The first step is to examine the plain language of the
statute. Lammers v. Board of Educ.,
134 N.J. 264, 267 (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. 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
549-550. 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, and did not indicate the legislative
intent to require restitution for convictions of meter tampering.
Id. at 550, 552. 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. 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 550-551.
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 "carry
different penalties," 190 N.J. Super. at 552. Thus, by relying
on Insabella the lower courts erred. As Section 8(k) makes
clear, the State, in a meter tampering case, may seek restitution
not only for the cost of repairing or replacing the tampered
meters, but also for the value of the services illegally
obtained.
The plain language of Section 8(k) requires a court, when
determining the amount of restitution, to consider the cost
expended "including but not limited to the repair and replacement
of damaged equipment, the cost of the services unlawfully
obtained, investigation expenses, and attorney fees." Consistent
with the statute's plain language, the Senate Judiciary Statement
states that "[i]n determining the amount of restitution, the
court is required to consider both the cost of repair and
replacement of damaged equipment and the cost of the services
unlawfully obtained." Thus, on remand, the municipal court, when
determining the amount of restitution, must consider the amount
of services that defendant obtained illegally.
Defendant's meter tampering directly relates to the value of
the gas that provides the basis for the order of restitution.
Specifically, defendant admitted to owning the properties that
received gas, tampering with the meter, and receiving gas at his
properties. The clear import of his admission is that defendant
profited from South Jersey Gas's loss. State v. Swed,
255 N.J.
Super. 228 (App. Div. 1992). By admitting to both tampering with
the meters and owning the properties serviced by those meters,
defendant's plea provides sufficient evidence to establish that
defendant was unjustly enriched at the expense of South Jersey
Gas. Those admissions justify an order of restitution under
Section 8(k) for services illegally obtained. Cf. State v.
Sainz,
107 N.J. 283, 293 (1987) (noting court should look to
other evidence in record and consider all circumstances
surrounding commission of crime when sentencing defendant who
enters guilty plea).
A remaining issue concerns the jurisdiction of the municipal court over claims involving restitution under Section 8(k). Although not raised by the parties below, we address the issue in the exercise of our inherent authority to consider jurisdictional questions. Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 65-66 (1978); Deerfield Estates, Inc. v. Township of E. Brunswick, 60 N.J. 115, 120 (1972); Friedman v. Podell, 21 N.J. 100, 106 (1956); Donnelly v. Ritzendollar, 14 N.J. 96 (1953); Caine v. Anchor Petroleum Co., 65 N.J. Super. 271, 274 (App. Div. 1961). The Legislature has designated meter tampering as a disorderly persons offense. N.J.S.A. 2C:20-8(c); see also N.J.S.A. 2C:1-4(b) ("An offense is a disorderly persons offense if it is so designated in this code or in a statute other than this code."). As a disorderly persons offense, meter tampering is subject to the jurisdiction of the municipal court, irrespective of the amount of restitution sought by the State. N.J.S.A. 2B:12-17(c). Defendant contends, however, that the Legislature has graded theft offenses so that only a theft of less than $200 constitutes a disorderly persons offense.
N.J.S.A. 2C:20-2b(3). Because a theft of $15,049.21 would
constitute a third-degree offense, N.J.S.A. 2C:20-2b(2)(a),
defendant contends that the municipal court lacked jurisdiction.
We disagree.
Defendant's argument fails to recognize the distinction
between the crime charged and the sentence imposed. If defendant
had been charged simply with the theft of $15,049.21, N.J.S.A.
2C:20-2b would govern the grading of his offense, and he would
have been subject to indictment for a third degree offense.
N.J.S.A. 2C:20-2b(2)(a).
Defendant, however, was charged with meter tampering,
contrary to N.J.S.A. 2C:20-8(c). Two consequences follow from a
meter tampering charge. First, a defendant accused of a
disorderly persons offense is subject to the jurisdiction of the
municipal court. N.J.S.A. 2B:12-17(c). Second, on conviction a
defendant is subject under Section 8(k) to a minimum fine of $500
and an order for restitution.
The selection of the statute under which to prosecute
defendant involved the exercise of prosecutorial discretion. See
State v. Kittrell,
145 N.J. 112, 129 (1996); Matter of L.Q.,
227 N.J. Super. 41, 48 (App. Div. 1988); State v. Stern,
197 N.J.
Super. 49, 54 (App. Div. 1984). If defendant had been charged
with third degree theft, the prosecutor would have been obligated
to bring the action before the Law Division of the Superior
Court. By prosecuting defendant for the disorderly persons
offense of meter tampering, however, the prosecutor properly
invoked the jurisdiction of the municipal court. As a corollary
to that decision, defendant's sentence is limited to that imposed
on a disorderly person under the provisions of Section 8(k). See
N.J.S.A. 2C:43-3c (providing for maximum fine of $1000 for
conviction of disorderly persons offense); see also Klesh v.
Coddington,
295 N.J. Super. 51, 60 (Law Div. 1996) ("[D]isorderly
persons offenses do not have the impact on a person's reputation
or character that is attendant on a criminal charge."); In re
Garfone,
80 N.J. Super. 259, 271 (Law Div. 1963) (noting
defendant convicted of disorderly persons offense is "spared the
brand of being adjudged a criminal" and receives punishment "less
severe than that imposed on corresponding crimes").
Restitution, however, differs from a fine. Although "fines
are payments demanded by the State to punish the wrongdoer and to
deter conduct that causes social harm[,] restitution serves to
rehabilitate the wrongdoer and to compensate the victim of the
wrongdoer's conduct." State v. Newman,
132 N.J. 159, 169 (1993);
see also N.J.S.A. 2C:43-3 ("A person who has been convicted of an
offense may be sentenced to pay a fine, to make restitution, or
both . . . ."); State v. Harris,
70 N.J. 586, 593 (distinguishing
restitution from fine).
The municipal court is not limited in the amount of
restitution it can order from a defendant who is guilty of meter
tampering. Cf. State v. Paone,
290 N.J. Super. 494, 497 (App.
Div. 1996) (upholding municipal court restitution award of
$102,545.59 subject to hearing regarding defendant's ability to
pay). As noted above, the Legislature clearly intended that the
court, when determining a restitution award, should consider "the
cost of the services unlawfully obtained." N.J.S.A. 2C:20-8(k).
The Legislature also authorized the imposition of restitution and
a minimum $500 fine "notwithstanding the provisions of N.J.S.
2C:43-3." Id. Moreover, even absent this qualification, the
municipal court's award of $15,049.21 restitution under Section
8(k) would be consistent with N.J.S.A. 2C:43-3, which limits a
disorderly persons fine to $1000 and provides that "restitution
ordered paid to the victim shall not exceed the victim's loss."
By requiring restitution on conviction for meter tampering,
the Legislature acted within its plenary power. State v. Smith,
58 N.J. 202, 211 (1971). Restitution under Section 8(k)
rationally relates to the offense defendant committed, meter
tampering. The amount of restitution awarded under Section 8(k)
is based on the expenses incurred by the utility, including
equipment repair and replacement, investigation expenses,
attorney fees, and the value of the services illegally obtained.
In addition to compensating the utility for costs incurred
incident to the tamperer's criminal behavior, the award of
restitution requires the meter tamperer to disgorge the amount by
which he or she was unjustly enriched. See State v. Pulasty,
259 N.J. Super. 274, 283-84 (App. Div. 1992), aff'd,
136 N.J. 356
(1994).
On remand, the municipal court should conduct a hearing at
which the parties may present evidence regarding South Jersey
Gas's loss and defendant's ability to pay. See N.J.S.A. 2C:20-8(k); 2C:43-3; 2C:44-2(b)&(c); Newman, supra, 132 N.J. at 169;
State v. Scribner,
298 N.J. Super. 366, 372 (App. Div.), certif.
denied,
150 N.J. 27 (1997); State v. Corpi,
297 N.J. Super. 86,
93-94 (App. Div.), certif. denied,
149 N.J. 407 (1997). If,
after this hearing, the municipal court decides to award
restitution as part of defendant's sentence, it should explain
the reasons underlying its decision, including the amount of
restitution awarded and the terms of payment. Scribner, supra,
298 N.J. Super. at 372.
We conclude by suggesting guidelines for municipal courts when accepting a defendant's guilty plea to an offense that involves restitution as a consequence of sentencing. First, the court should elicit a sufficient factual basis to support a defendant's guilty plea. The court has the ultimate responsibility to assure an adequate factual basis for both the plea and a restitution order. See R. 3:9-2; State v. Smullen, 118 N.J. 408, 415 (1990).
Second, as this appeal makes clear, the court should explain the sentencing consequences to a defendant before accepting a guilty plea. When sentencing a defendant for a violation of N.J.S.A. 2C:20-8, the court should inform the defendant that he or she could be subject to restitution, including the value of the services illegally obtained. A defendant who pleads guilty
should not be in doubt about the maximum exposure under a
restitution order.
Although defendant's statement could have been more
complete, it suffices to provide an adequate basis for
defendant's plea of guilty. Even before us, moreover, defendant
does not seek to withdraw his guilty plea. Defendant was aware
of the possibility that restitution could be ordered as a result
of his guilty plea to meter tampering. At oral argument before
us, defense counsel clarified that he had told defendant that the
State would seek restitution. In addition, he discussed the
issue of restitution with the Atlantic City Prosecutor before
defendant pled. Because defendant preferred to avoid a trial, he
pled guilty with the understanding that his counsel would dispute
the issue of restitution at sentencing. Indeed, immediately
after defendant entered his guilty plea and before sentencing,
defense counsel asked the court to be heard on the restitution
issue.
We are satisfied that defendant provided an adequate basis
to sustain both his conviction and the order of restitution. See
R. 3:9-2. Even without so clear a record, the plain language of
Section 8(k) clearly indicates that a defendant would be subject
to a restitution order. No matter how sincere defense counsel
may have been in questioning whether defendant was subject to a
restitution order, defendant's reliance on the advice of counsel
does not provide a basis for the withdrawal of defendant's guilty
plea. Incorrect legal advice concerning restitution does not
provide a basis for attacking the finality of a guilty plea. See
State v. DiFrisco,
137 N.J. 434, 455 (1994) ("[T]he erroneous
sentencing prediction of a defense counsel does not warrant
vacating a guilty plea rendered because of it."); see also
Smullen, supra, 118 N.J. at 416 ("All plea-bargain jurisprudence
recognizes the important interest of finality to pleas.").
Defendant has not indicated any intention to withdraw his plea.
Even if he so intended, however, we would not be inclined to rely
on any asserted lack of knowledge of the consequences of his
plea. R. 3:9-2; R. 3:21-1 (allowing withdrawal of plea after
sentencing to correct "manifest injustice"); State v. Rodriguez,
179 N.J. Super. 129, 136 (App. Div. 1981) (holding defense
counsel's inaccurate assurance regarding possible sentence to be
imposed did not result in manifest injustice to defendant).
The judgment of the Appellate Division is reversed and the
matter is remanded to the municipal court.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE POLLOCK's opinion.
NO. A-40 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOSEPH KENNEDY,
Defendant-Respondent.
DECIDED February 5, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY