RESTITUTIONRESTITUTIONRESTITUTIONRESTITUTIONRESTITUTION
Restitution is an appropriate and salutary technique in
the criminal process and is a far more preferable remedy
than the recovery of damages in a separate civil action. State
v. Harris, 70 N.J. 586, 591-592 (1976). Justice and
rehabilitation are achieved through restitution. Id.
The adoption of the penal code in 1979 significantly
expanded the imposition of restitution as an independent
sentencing disposition. Under prior law (Title 2A),
restitution was largely limited because it could be imposed
only as a condition of probation. See N.J.S.A. 2A:168-2
(repealed); State v. Varlese, 171 N.J. Super. 347, 355 (App.
Div. 1979), certif. denied 82 N.J. 298 (1980); State v.
Wright, 156 N.J. Super. 559, 562 (App. Div. 1978).
Under the penal code, there is a clear preference for
restitution where appropriate, as opposed to the
imposition of a fine. A fine may only be levied if it does not
prevent imposition of necessary restitution. N.J.S.A.
2C:44-2a(3). Restitution may be imposed in addition to
even a maximum fine. N.J.S.A. 2C:43-3h. Restitution can
be part of a variety of sentencing dispositions, namely: (1)
in combination with both a fine and imprisonment,
N.J.S.A. 2C:43-2b(4); (2) in combination with only
imprisonment, N.J.S.A. 2C:44-2a; (3) imposed as the per se
sentencing disposition, N.J.S.A. 2C:43-2b(1); and (4) as a
condition of probation. N.J.S.A. 2C:43-2b(4); N.J.S.A.
2C:44-2a; N.J.S.A. 2C:45-1b(8). Restitution is applicable
to violent as well as property crimes. See In Re Trantino
parole Application, 89 N.J. 347, 358, 361 (1982).
The penal code provides that, the court shall sentence
a defendant to pay restitution in addition to sentence of
imprisonment or probation, if the victim, or in the case of
a homicide, the nearest relative, suffered a loss and the
court finds defendant has the ability to pay. N.J.S.A.
2C:44-2b. In setting the actual amount of restitution to be
made, the court is required to consider the resources of, and
burden on, the person ordered to make restitution.
N.J.S.A. 2C:44-2c(2). Such person must have a fair
opportunity to pay the restitution. N.J.S.A. 2C:44-2b(2).
A trial court is not required to consider whether
alternative methods of punishment to imprisonment were
appropriate in case where defendant willfully failed to
comply with restitution order while on probation, which
was consequently revoked. State v. Townsend, 222 N.J.
Super. 273, 280 (App. Div. 1988).
Sentence that requires defendant to repay victim
money obtained through fraud does not constitute cruel
and unusual punishment. State v. DeAngelis, 329 N.J.
Super. 178, 190 (App. Div. 2000).As a condition precedent to an order of restitution,
there must be a showing of the amount due the victim and
the offender’s ability to repay. State v. Bausch, 83 N.J. 425,
435 (1980). Due process requires a hearing on these issues,
that is, a summary proceeding providing notice wherein a
person may defend or refute the circumstances of
restitution. State in Interest of D.G.W., 70 N.J. 488, 502-
503, 506 (1976); State v. Paladeno, 203 N.J. Super. 537
(App. Div. 1985). The focus of the hearing should be a
probation department report on a prior investigation
about: (1) the nature and extent of the losses; (2) the
method used to determine the value of the losses incurred;
(3) the amount of money the offender is able to repay and
(4) the offender’s present and probable future ability to
make such repayment. Id. at 505. This factual basis for
restitution must, on balance, aver sufficient facts to support
restitution that is reasonable and just. State v. Harris, 70
N.J. 586, 599 (1976). The owner of personal property may
give his estimate of the value of his property. State v. Rhoda,
206 N.J.Super. 584 (App. Div. 1986), certif. denied 105
N.J. 524 (1986).Where there is a good faith dispute over the amount of
the loss or defendant’s ability to pay, the trial court as a
matter of defendant’s due process entitlement, must hold a
hearing on the issue, the character of which should be
appropriate to the nature of the question presented. State
v. Jamiolkoski, 272 N.J. Super. 326 (App. Div. 1994)
(dispute over restitution amount in PTI form signed by
defendant).Defendant was not entitled to restitution hearing
where no dispute existed as to amount of restitution and
defendant raised no objection to concession made by his
counsel that defendant had funds to pay restitution nor did
he dispute his ability to pay. State v. Orji, 277 N.J. Super.
582 (App. Div. 1994).Whatever the contents of the probation report, the
final decision on the amount and terms of restitution rests
with the sentencing judge, and, therefore, may include
consideration of other relevant factors. State in Interest of
D.G.W., supra, 70 N.J. at 503-507. The amount of
restitution shall not exceed victim’s loss. 2C:43-3h. The
restitution ultimately imposed must be limited by and
directly related to defendant’s offenses. State v. Harris, 70
N.J. at 593; State v. Insabella, 190 N.J. Super. 544, 552
(App. Div. 1983).