The court must explain and outline the reasons for
imposing restitution on the record, pursuant to R. 3:21-
4(e). State v. Bausch, supra, 83 N.J. at 436; State v. Harris,
supra, 70 N.J. at 599. The sentencing court, not the
probation department, must establish the terms and
conditions of restitution. State v. Blassingdale, 163 N.J.
Super. 110, 113 (App. Div. 1978), certif. dism. 87 N.J. 48
(1979).
The penal code further provides procedures related to
the manner of payment, N.J.S.A. 2C:46-1; the
consequences of nonpayment, N.J.S.A. 2C:44-2d and
N.J.S.A. 2C:46-2; and to the responsibility for collection of
restitution payments. N.J.S.A. 2C:46-4.
In the context of a plea bargain, an offender may be
ordered to make restitution on an offense not pled to, but
only if the trial court finds that the offender has voluntarily
and knowingly admitted a factual basis for liability on the
dismissed charge. State v. Bausch, 83 N.J. 425, 436 (1980).
In this regard, in order to impose restitution on dismissed
counts of an indictment, a factual basis for the restitution
must be established at the time of the plea; defendant must
be informed on the record that restitution may be imposed
on these counts, and there should be a relationship between
the restitution and the goal of rehabilitation with respect to
the offense for which defendant is being sentenced. State v.
Bausch, 83 N.J. 425 (1980); State v. Kruegar, 241 N.J.
Super. 244 (App. Div. 1990). But see Hughey v. United
States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408
(1990) (under federal law, restitution cannot be imposed
on dismissed counts of indictment).
In State v. Hill, 155 N.J. 270 (1998), the Supreme
Court held that the statute governing restitution, N.J.S.A.
2C:43-3e, permits restitution to third parties, such as
insurance companies, employers or private or government
organizations, who reimbursed a crime victim for losses
suffered as a result of criminal conduct. The Court saw no
reason “why the fortuity of an injured party being insured
or otherwise protected from suffering economic hardship
should excuse defendant from an obligation to pay
restitution.”
In prosecution for tampering with electric, gas or water
meters, State may seek restitution not only for cost of
repairing or replacing tampered meters, but also for value
of services illegally obtained. State v Kennedy, 152 N.J. 413
(1998).
Drug-buy money is not recoverable as restitution, but
it should be taken into account by trial court in connection
with imposition of fine. State v. Newman, 132 N.J. 159,
177 (1993).N.J.S.A. 2C:43-3.4 provides that court may order
defendant to make restitution for costs of extradition
incurred by the State. (Effective 9/12/97). Overruling
State v. Wildman, 296 N.J.Super 565 (App.Div. 1997).Pursuant to N.J.S.A. 2C:43-2.1 a defendant convicted
of offense involving theft or unlawful taking of motor
vehicle is liable for any reasonable and necessary expense
incurred by owner in recovering vehicle and damage to it.
The trial court shall order such restitution at sentencing
and it has the effect of a civil judgment.In State v. Giordano, 283 N.J. Super. 323 (App.
Div.1995), the Appellate Division held that bail money
posted by a third party cannot be applied to defendant’s
restitution obligation, but must be returned to the third
party or applied in accordance with the assignment given
by the third party.Civil settlement or release does not absolve defendant
of obligation to pay criminal restitution. An agreement
between a victim and a defendant which abrogates court-
ordered restitution is not binding on the State or the
criminal court. State v. DeAngelis, 329 N.J. Super. 178, 189
(App. Div. 2000).In Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93
L.Ed.2d 216 (1986), the United States Supreme Court
held that restitution obligations, imposed as conditions of
probation in state criminal proceedings, are not
dischargeable in proceedings under Chapter 7 of the
Bankruptcy Code. Restitution orders entered in criminal
proceedings are based upon the State’s interests in
rehabilitation and punishment, rather than the victim’s
desire for compensation; thus they operate for the benefit
of the State. But see In the Matter of Towers, 162 F.3d 952
(7th Cir. 1998) (criminal restitution orders not
dischargeable but state/victims must present claim to
bankruptcy court), cert. denied 527 U.S. 1004 (1999); In Re
Rashid, 210 F.3d 201 (3d Cir. 2000).