At the time of sentencing, the trial court is required,
before imposing a fine or restitution, to determine if the
defendant is able, or given a fair opportunity to do so, will
be able to pay the fine, make restitution or both. N.J.S.A.
2C:44-2b(2); State v. Newman, 132 N.J. 159, 169 (1993);
State v. McLaughlin, 310 N.J. Super. 242 (App. Div.), certif.
denied 156 N.J. 381 (1998) (a hearing was required in the
trial court to determine defendant’s ability to pay
restitution in an amount of $271,000); State v. Smith, 307
N.J. Super. 1 (App. Div. 1997), certif. denied 153 N.J. 216
(1998), (remanded to trial court for an “ability to pay”
hearing as to restitution in amount of $54,681.96).
In State v. Scribner, 298 N.J. Super. 366 (App. Div.
1997), certif. denied 150 N.J. 27 (1997), the Appellate
Division held that in imposing restitution jointly and
severally between codefendants, the sentencing court must
examine each individual’s present or future ability to pay.
The sentencing judge has considerable discretion in
evaluating a defendant’s ability to pay and must explain the
reasons the decision to order restitution, the amount of
restitution, and its payment terms.
The question of restitution in criminal and juvenile
proceedings need not hinge exclusively on ability to pay, if
the amount of restitution ordered is otherwise appropriate.
There is no reason not to order appropriate restitution even
when the person ordered to make restitution is presently
unable to pay either the entire amount or a lesser amount
based on a reasonable payment schedule. State In the
interest of R.V., 280 N.J.Super 118, 121-122 (App. Div.
1995).
Defendant can be required to pay restitution out of
pension funds he receives. State v. Pulasty, 136 N.J. 356
(1994), cert. denied 513 U.S. 1017 (1994).
In State v. Burton, 309 N.J. Super. 280 (App. Div.),
certif. denied 156 N.J. 407 (1998) the Appellate Division,
remanded the matter of restitution to the trial court in the
absence of an explanation for the difference between the
amount of restitution ordered at the time of sentencing and
the amount reflected in the judgment of conviction.
In State in the Interest of M.C., 292 N.J. Super. 214 (Ch.
Div. 1995), the court ordered the juvenile offender to make
restitution as a condition of probation for the expenses of
psychotherapy and after school supervision incurred on
behalf of the victim and paid for by the victim’s mother.
There must be some relationship between the
defendant’s ability to pay over course of his incarceration
and parole and $10,000 VCCB penalty imposed. State v.
Gallagher, 286 N.J. Super. 1, 23 (App. Div. 1995), certif.
denied 146 N.J. 569 (1996)Orders of restitution imposed as part of defendant’s
criminal sentence remain intact as part of that sentence
regardless of the fact that defendant’s period of probation
has expired. State v. Kemprowski, 265 N.J. Super. 471
(App. Div. 1993). N.J.S.A. 2C:45-2 (permitting probation
to be extended if restitution not paid); N.J.S.A. 2C:46-2b,c
(permitting collection of restitution by any means available
for collection of civil judgment upon default).In State v. Paone, 290 N.J. Super. 494 (App. Div.
1996), the defendant was a corporate president convicted
of failing to remit unemployment insurance contributions,
and he was required to pay restitution regardless of whether
he received pecuniary gain himself.There is no infringement on a defendant’s
constitutional rights because trial judge and counsel did
not discuss possibility of restitution at a plea hearing. State
v. Kruegar, 241 N.J.Super 244, 254 (App. Div 1990); State
v. Rhoda, 206 N.J. Super. 584, 595-596 (App. Div. 1986),
certif. denied 105 N.J. 524 (1986).In State v. Saperstein, 202 N.J. Super. 478 (App. Div.
1985), the court found that restitution of $150,000 was
beyond defendant’s reasonable expectations at time of
guilty plea and required remand to trial court for Kovack
hearing.However, in State v. Rhoda, 206 N.J. Super. 584 (App.
Div. 1986), certif. denied 105 N.J. 524 (1986). The court
held there was no obligation for sentencing court to advise
defendant of the possibility of reasonable restitution which
is considered part of rehabilitation and resocialization
process, although it is better practice to advise at time of
guilty plea.In State v. Corpi, 297 N.J. Super. 86 (App. Div.), certif.
denied 149 N.J. 407 (1997) defendant offered to make full
restitution before sentencing in exchange for a custodial
term, shorter than the one provided for in the plea
agreement. When he failed to pay, the original plea
bargained sentence was imposed. The Appellate Division
held that defendant received fundamental fairness and due
process in the plea and sentencing process because the
sentence recommendations were partly conditioned on
defendant’s agreement to pay the victim full restitution,
which he did not do.