                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                              SUPERIOR COURT OF NEW JERSEY
                                              APPELLATE DIVISION
                                              DOCKET NO. A-1967-16T1

STATE OF NEW JERSEY,
                                                 APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                                    November 16, 2017
v.                                                 APPELLATE DIVISION

NICHOLAS MASCE,

     Defendant-Respondent.
________________________________

            Argued September 12, 2017 – Decided November 16, 2017

            Before Judges Fisher, Fasciale and Moynihan.

            On appeal from Superior Court of New Jersey,
            Law Division, Gloucester County, Indictment
            No. 16-01-0001.

            John A. Nicodemo, Deputy Attorney General,
            argued the cause for appellant (Christopher
            S. Porrino, Attorney General, attorney; Mr.
            Nicodemo, of counsel and on the brief).

            Jaime B. Herrera, Assistant Deputy Public
            Defender, argued the cause for respondent
            (Joseph   E.   Krakora,   Public   Defender,
            attorney; Ms. Herrera, of counsel and on the
            brief).

     The opinion of the court was delivered by

MOYNIHAN, J.S.C. (temporarily assigned).

     The State of New Jersey appeals from the sentencing judge's

order   denying   its    request    to    enter,     as   part   of     the   plea

agreement   reached     between    it   and    defendant,   a    civil   consent
judgment for restitution due the victims of defendant's theft,

and from an order denying reconsideration.                         We agree with the

sentencing    judge      that      he    was    without    statutory      authority      to

enter the judgment and affirm.

     Defendant pleaded guilty to an amended charge of third-

degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), admitting

he   took    $85,131.18       in        benefits      directly    deposited       in     his

deceased mother's bank account after her death.                          The victims of

the theft were two pension funds and the United States Social

Security Administration.1               The State recommended that, as part of

the plea agreement, defendant pay restitution in the full amount

due all victims, a payment schedule be set through probation,

and the judge enter a civil consent judgment in favor of the

victims.

     Judge       Kevin   T.     Smith      entered        the    plea    but     expressed

reservations about his ability to order the entry of a civil

consent     judgment.         Prior        to       sentencing    the    State    argued,

inasmuch    as    N.J.S.A.         2C:44-2(f)         provides    that    an     order    of

restitution      imposed      by    a    sentencing       judge   does    not     bar    the

victim from seeking civil remedies, a sentencing judge is not

precluded from entering a civil consent judgment to prevent the

1
   Defendant took funds deposited by the Social Security
Administration in the amount of $74,601 and by the two pension
funds – $6555.78 from one, $3974.40 from the other.



                                                2                                 A-1967-16T1
victim's incurrence of further expense in pursuit of a civil

recovery.    Defendant took no position.

       Judge Smith, in a written opinion, rejected the State's

interpretation          of    N.J.S.A.       2C:44-2(f),             holding     that        the

Legislature intended that civil remedies be pursued in a civil

court; the Legislature did not provide for recovery through the

criminal sentencing process.             The judge also took issue with the

ethical propriety of requiring defendant to agree to a civil

consent judgment as part of a plea agreement.                             He concluded it

was    "improper    for       the    State       to    .   .     .    threaten        criminal

prosecution to get an upper hand in a civil matter," citing RPC

3.4(g).     The State argued in a motion for reconsideration that

N.J.S.A. 2C:43-2(d) allowed "the court to . . . impose any . . .

civil penalty" conferred by law at sentencing.                                  Judge Smith

again disagreed, ruling the penalties that may be imposed under

that   statute     are       those   provided         in   the   New      Jersey      Code    of

Criminal Justice (the Code), such as forfeiture of public office

and limitation on Internet access, but a civil consent judgment

was not included among those penalties.

       On appeal, the State contends that the judge erred because

the Code "clearly sets forth authority for a sentencing court to

impose civil penalties at sentencing," and that a civil consent

judgment    is     "a    lawful      means"       conferred          by   law    to    ensure




                                             3                                        A-1967-16T1
remuneration        of    victims       "above          and     beyond       an     order    of

restitution."         The State also submits the entry of a consent

judgment "raises no ethical considerations."                          Defendant counters

that   the    judge      was    without   authority           to     enter    the    judgment

because a civil consent judgment "is a contractual agreement and

not a 'penalty.'"

       In    determining        the   propriety         of    entering       civil    consent

judgments      in   favor       of    crime   victims          at    sentencing,       it    is

necessary to analyze the applicable statutory provisions.                                    We

owe no deference to the sentencing judge's legal interpretation

of those statutes, a purely legal issue, and conduct our review

de   novo.      State      v.    Buckley,         216    N.J.       249,   260-61     (2015);

Manalapan Realty LP v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995).

       "Our task in statutory interpretation is to determine and

effectuate the Legislature's intent."                        Bosland v. Warnock Dodge,

Inc., 197 N.J. 543, 553 (2009).                     The Supreme Court recognized

the statutory directive we utilize to explicate a legislative

enactment:

              In the construction of the laws and statutes
              of this state, both civil and criminal,
              words   and  phrases   shall  be   read  and
              construed with their context, and shall,
              unless inconsistent with the manifest intent
              of the legislature or unless another or
              different meaning is expressly indicated, be
              given their generally accepted meaning,



                                              4                                       A-1967-16T1
            according       to   the       approved       usage       of   the
            language.

            [State v. Gandhi, 201 N.J. 161, 177 (2010)
            (quoting N.J.S.A. 1:1-1).]

"[W]e look first to the plain language of the statute, seeking

further    guidance       only   to    the       extent   that     the     Legislature's

intent cannot be derived from the words that it has chosen."

Pizzullo v. New Jersey Mfrs. Ins. Co., 196 N.J. 251, 264 (2008).

If the statutory language is ambiguous, we turn to extrinsic

evidence    from     "a    variety    of     sources      .   .   .    [c]entral    among

[which] is a statute's legislative history."                          Richardson v. Bd.

of Trs., P.F.R.S., 192 N.J. 189, 196 (2007).

    Because there are a number of provisions in the Code that

apply to our analysis, we heed the Court's direction that

            [s]tatutes must be read in their entirety;
            each part or section should be construed in
            connection with every other part or section
            to provide a harmonious whole.          When
            reviewing two separate enactments, the Court
            has an affirmative duty to reconcile them,
            so as to give effect to both expressions of
            the lawmakers' will.     Statutes that deal
            with the same matter or subject should be
            read in pari materia and construed together
            as a unitary and harmonious whole.

            [In re Petition for Referendum on City of
            Trenton Ordinance 09-02, 201 N.J. 349, 359
            (2010) (citations omitted).]

    Our analysis begins with the general principle that all

sentences imposed by a court for any offense must comport with

Chapter    43   of   the    Code,     N.J.S.A.      2C:43-1       to    -22.     N.J.S.A.


                                             5                                   A-1967-16T1
2C:43-2(a).       Courts, unless compelled by the Code to impose

restitution,2 have the discretion to sentence a defendant to pay

restitution.      N.J.S.A. 2C:43-2(b)(1), -2(b)(4), -3.

       Courts cannot simply gauge the amount of restitution by a

victim's      loss.   Although    the    amount    of   restitution    may   not

exceed the amount of loss,3 N.J.S.A. 2C:43-3, "[i]n determining

the amount and method of payment of restitution, the court shall

take   into    account   all   financial     resources    of   the   defendant,

including the defendant’s likely future earnings, and shall set

the amount of restitution so as to provide the victim with the

fullest    compensation    for    loss      that   is   consistent    with   the

defendant’s ability to pay."        N.J.S.A. 2C:44-2(c)(2).




2
  See, e.g., N.J.S.A. 2C:44-2(b) (requiring a court to order
restitution be paid by a defendant if the loss was incurred by
the victim of a homicide – or by a victim's relative – and the
defendant has the ability to pay, either at the time of
sentencing or, "given a fair opportunity," thereafter). See also
N.J.S.A. 2C:11-3c (mandating the court to order a person
convicted of murder to pay restitution to the victim's nearest
surviving relative); N.J.S.A. 2C:43-2.1 (mandating that a
defendant convicted of motor vehicle theft or unlawful taking be
ordered to pay restitution to the victim for any reasonable and
necessary expense incurred in recovering the vehicle, and for
the amount of damages sustained); N.J.S.A. 2C:43-3 (mandating
the court to order restitution if the victim is a department or
division of the State of New Jersey).
3
  An exception exists for a defendant's failure to pay taxes to
the State.



                                        6                              A-1967-16T1
      The distinction between restitution and civil remedies is

clear from the stated purposes of restitution, as noted by the

Supreme Court in State v. Harris, 70 N.J. 586, 591-92 (1976):

            [W]e are of opinion that restitution is not
            only   an   appropriate  but  frequently  a
            salutary technique in the criminal process,
            and in the purposes of the probation system
            contemplated by the statute.

                 And, necessarily without prejudice to
            the right of any aggrieved party to seek to
            recover damages in a civil action (because
            not a party to the criminal disposition), we
            regard it as preferable in the ordinary
            case,   where   feasible,  to  provide   for
            restitution within the probation context.
            This for two main and coalescing reasons.
            One may be termed the "justice" factor. The
            court which orders restitution acts in the
            interest of repairing the harm done the
            aggrieved party. In meting out substantial
            justice in this fashion, the court is even
            more   importantly   motivated  by   another
            reason,    which    may   be   termed    the
            "rehabilitation" factor – the predominant
            rehabilitative    aspect   of   probationary
            restitution.

                 We therefore agree with the Appellate
            Division that:

                  Restitution in a proper case may
                  ofttimes be a compelling reminder
                  of the wrong done and meaningfully
                  contribute to the rehabilitation
                  process.

      The entry of a consent judgment would run counter to both

the court's statutory duty to determine a defendant's ability to

pay   and   the   rehabilitative   purpose   of   restitution.      If    a

judgment was docketed for the full amount of a victim's loss,


                                    7                            A-1967-16T1
the    victim    could    enforce       the       full   amount       of   the   judgment,

without regard to the court's finding of the defendant's ability

to pay.     Enforcement would obviate any payment schedule set by

the court, thwarting "the predominant rehabilitative aspect of

probationary restitution."             Id. at 592.

       Further    analysis    of       the    statutory     scheme         of   restitution

reveals    the    Legislature      made       no    provision      for     civil    consent

judgments in the sentencing provisions of the Code.                                 It did

provide, however, for the filing of an order or judgment of

conviction in certain instances.

       When a defendant is sentenced to pay restitution, the court

may,    under    N.J.S.A.     2C:46-1(a),            "grant    permission          for   the

payment to be made within a specified period of time or in

specified installments."           If permission is not granted, N.J.S.A.

2C:46-1(a)       dictates, "restitution shall be payable forthwith,

and the court shall file a copy of the judgment of conviction

with the Clerk of the Superior Court who shall enter . . .

information upon the record of docketed judgments" including, in

pertinent       part,    naming     the       defendant       as      judgment      debtor,

N.J.S.A.    2C:46-1(a)(1);         and       "the    amount      of    any      restitution

ordered and the name of any persons entitled to receive payment

as    judgment    creditors       in    the       amount   and     according        to   the

priority set by the court[,]" N.J.S.A. 2C:46-1(a)(3).




                                              8                                    A-1967-16T1
      A    like       aid   to    victims         was       also       prescribed      in    N.J.S.A.

2C:43-2.1, which compels a court to order a defendant convicted

of   theft       or    unlawful         taking         of     a    motor       vehicle       to    make

restitution "for any reasonable and necessary expense incurred

by the owner in recovering the motor vehicle and for any damage

to   the    motor      vehicle         prior      to    its       recovery."           The    statute

directs     the       court      to    file    a       copy       of    the    order       compelling

restitution with the Clerk of the Superior Court who must enter

on the "record of docketed judgments the name of the convicted

person      as    judgment        debtor,         and       of     the       owner    as     judgment

creditor," as well as the basis of the order, the amount of

restitution and the date of the order.                                       N.J.S.A. 2C:43-2.1.

Such entry has "the same force as a judgment docketed in the

Superior Court."            N.J.S.A. 2C:43-2.1.

      Though these provisions allow entry of documents tantamount

to civil judgments, the procedures authorized by the Legislature

do not include actual entry of a civil judgment.

      The    Legislature              did   not    provide             for    entry    of    a    civil

judgment in favor of a victim even in the event of a default in

payment of restitution by a defendant.                             Courts are not permitted

to impose an alternative sentence in anticipation of a default;

courts may respond only after non-payment, and then only in

accordance with the statutory framework.                               N.J.S.A. 2C:44-2(d).




                                                   9                                         A-1967-16T1
      Upon default, and after a motion is filed, a hearing held,

and a finding made by the court that the default was without

good cause and willful,4            a court can take the actions set forth

in N.J.S.A. 2C:46-2(a) and (b).                  Although a number of options

are   available     under    those     sections,           the    entry    of    a    civil

judgment    is    not   among    them.          The   Legislature          did   provide,

however, upon default, "execution may be levied and such other

measures may be taken for collection of it or the unpaid balance

thereof as are authorized for the collection of an unpaid civil

judgment entered against the defendant in an action on a debt."

N.J.S.A.    2C:46-2(b).         A    victim      entitled         to   payment       from   a

defaulting    defendant     is      also   permitted         to    institute      summary

collection       proceedings        authorized        by     N.J.S.A.       2C:46-2(b).

N.J.S.A. 2C:46-2(c).        The statute grants no power to a criminal

judge to aid a victim in collecting the balance of restitution

by entering a civil consent judgment.

      Other   statutes      echo     the   legislative            intent    to   allow      a

victim to pursue civil remedies, albeit without grant of any

authority to a criminal court to aid the victim in seeking such

remedies:

                 The ordering of restitution pursuant to
            this section shall not operate as a bar to

4
  At the hearing, the defendant has the burden of proving good
cause for the default by a preponderance of the evidence.



                                           10                                    A-1967-16T1
              the seeking of civil recovery by the victim
              based   on   the   incident   underlying   the
              criminal   conviction.   Restitution   ordered
              under this section is to be in addition to
              any civil remedy which a victim may possess,
              but any amount due the victim under any
              civil remedy shall be reduced by the amount
              ordered under this section to the extent
              necessary to avoid double compensation for
              the same loss, and the initial restitution
              judgment shall remain in full force and
              effect.

              [N.J.S.A. 2C:44-2(f).]

       Our review of the plain language of the comprehensive laws

regarding restitution to crime victims leads us to conclude that

criminal      courts       are    proscribed     from    entering      civil     consent

judgments      when        sentencing       a    defendant       ordered        to     make

restitution.          If all sentences must be imposed in accordance

with the Code, and the Code makes no provision for a court to

enter a civil consent judgment, the entry of such a judgment

would contravene the parameters of the authority conferred on

sentencing courts by the Legislature.                        Although resorting to

legislative         intent       is   unnecessary     when     the    statutes'      plain

language      is    unambiguous,        State    v.   Nance,    228    N.J.     378,    393

(2017), we elect to undertake a thorough review.

       Most    of    the     statutes     we    analyzed     were     enacted     by   the

Legislature in 1991,5 in a comprehensive effort to make crime



5
    L. 1991, c. 329.



                                            11                                   A-1967-16T1
victims whole after suffering a loss at the hands of a criminal

defendant.          The       Assembly     Judiciary,          Law       and    Public      Safety

Committee recognized that the 1991 bill "amends various sections

of law concerning victims of crime[,]" including "N.J.S.A. 2C:1-

2   concerning          the     general       purposes         of     the       criminal        code

sentencing      provisions            to     include      the        purpose        to     promote

restitution        to    victims."           Assembly         Judiciary,        Law       and   Pub.

Safety Comm., Statement to A. 4819 (June 6, 1991).                                        See also

State    v.    Newman,         132    N.J.    159,       175    (1993).             The    Sponsor

Statement and the Assembly Appropriations Committee Statement

both provide the aim of the bill is to "require[] courts to

order    defendants       to     compensate         their      victims         to   the    fullest

extent    possible"           given    their        ability         to    pay.            Sponsor's

Statement     to    A.    4819       (enacted       as   L.    1991      c.    329);      Assembly

Appropriations Comm., Statement to A. 4819 (August 1, 1991).

The Appropriations Committee noted that the legislation

              provides several measures to improve the
              State's ability to collect moneys owed by
              convicted    persons:    a    court    granting
              probation or imposing a suspended sentence
              must   require,   as   a   condition   of   the
              probation or suspended sentence, that the
              defendant    make    complete     payment    of
              restitution and assessments for victims and
              witnesses; the probationary term of any
              person who fails to meet these obligations
              must   be   extended;    the   Department    of
              Corrections must withhold moneys owed from
              funds earned by and kept for inmates; and
              persons who default without good cause lose



                                               12                                          A-1967-16T1
            the privilege of driving in this State until
            full payment is made.

            [Assembly Appropriations Comm., Statement to
            A. 4819 (August 1, 1991).]

      The     measures     enacted     by     the     Legislature        to     foster

collection     of     restitution,     among        other    payments     due     from

sentenced defendants, did not include civil consent judgments.

Although    the     Legislature     enacted   sweeping       changes     to   provide

compensation to crime victims, it provided spare civil relief –

and none involving consent judgments.                   We are convinced the

legislative intent was to limit the aid to a victim's civil

recovery to that set forth in the statutes.

      The State contends civil consent judgments are authorized

by N.J.S.A. 2C:43-2(d), which provides that Chapter 43 of the

Code – Authorized Disposition of Offenders – "does not deprive

the   court    of    any   authority    conferred       by    law   to    decree       a

forfeiture of property, suspend or cancel a license, remove a

person from office, or impose any other civil penalty.                          Such a

judgment or order may be included in the sentence."                       It argues

the judgment is a civil penalty which a court may order and

enter.

      The   State's      argument    does     not    consider    the     qualifying

language in the statute that the authority to impose a civil

penalty must be conferred by law.                   As we have deduced, civil




                                        13                                    A-1967-16T1
consent judgments are not among the penalties conferred by law.

We   construe         N.J.S.A.     2C:43-2(d)          to    mean       that   the    court      may

impose those civil penalties specified in a statute.                                      The civil

penalties        include,         as   set        forth      in     N.J.S.A.         2C:43-2(d),

suspension or cancellation of driving privileges as provided for

in   a    number       of   statutes,        including           N.J.S.A.      2C:43-2(c)        and

2C:46-2(a)(1)(a).                Likewise,    removal            from     office     is    a   civil

penalty expressly authorized by N.J.S.A. 2C:51-2.6

         The two cases relied upon by the State in support of its

argument        are    inapposite.         Both        Old       Bridge    Public     Workers       &

Sanitation Union v. Township of Old Bridge, 231 N.J. Super. 205

(App. Div. 1989), and State v. Baber, 256 N.J. Super. 240 (Law

Div.     1992),       involved     forfeiture          of    public       office,     a     penalty

expressly authorized by statute as a collateral consequence of

conviction.

         When    the    Legislature        provided          a    statutory        procedure      to

recover     payment         of    fines,     we    declined         to     construe        N.J.S.A.

2C:43-2(d) as conferring authority on a court to impose fines as

a "civil penalty."               In State v. McLaughlin, 310 N.J. Super. 242,


6
  An example of one of the "other" civil penalties under N.J.S.A.
2C:43-2(d) is provided in N.J.S.A. 2C:43-3, which mandates "in
any case involving the failure to pay any State tax, the amount
of restitution to the State shall be the full amount of the tax
avoided or evaded, including full civil penalties and interest
as provided by law."



                                                  14                                       A-1967-16T1
246 (App. Div.), certif. denied, 156 N.J. 381 (1998), defendant

was both convicted of and pleaded guilty to crimes related to

false claims and appraisals he submitted to defraud an insurance

company.      The   trial      judge    imposed      fines      totaling         $270,000

pursuant     to   the   New    Jersey    Fraud      Prevention           Act,    N.J.S.A.

17:33A-1 to -30.         McLaughlin, supra, 310 N.J. Super. at 261.

Defendant appealed, arguing the trial court lacked authority to

impose fines pursuant to the Act.                  Ibid.     The State countered

that the fines were properly imposed, notwithstanding language

in the Act limiting imposition of civil penalties to persons who

had been found guilty of violating the provisions of the Act by

a court of competent jurisdiction pursuant to a claim initiated

by the Commissioner of Insurance.                  Ibid.   The State posited a

criminal court has the power under N.J.S.A. 2C:43-2(d) to impose

"any civil penalty."          McLaughlin, supra, 310 N.J. Super. at 261.

We found the trial court did not have authority pursuant to

N.J.S.A. 2C:43-2(d) to impose fines as civil penalties under the

Act   because     the   Legislature      specifically        provided           that   the

Commissioner      was    required       to     institute        a       civil    action.

McLaughlin, supra, 310 N.J. Super. at 261-63.                           Likewise, here,

there   is   no   law   that    allows       the   entry   of       a    civil   consent

judgment as a penalty.




                                         15                                      A-1967-16T1
    The     legislative        history      of     the     1991   amendments      also

convince us that the Legislature did not intend to include civil

consent    judgments     as        penalties.           The    amendments    removed

"penalties"     from     provisions         dealing        with     non-payment     of

restitution.        Assembly Judiciary, Law and Pub. Safety Comm.,

Statement to A. 4819 (June 6, 1991).                    One of the amendments, L.

1991, c. 329, § 8, clarifying that payment of restitution may be

a condition of probation, did not include payment of a penalty

as a condition of probation.               Assembly Judiciary, Law and Pub.

Safety    Comm.,    Statement       to    A.     4819    (June    6,   1991).      The

legislative intent to treat restitution and penalties separately

is obvious.

    All    roads     lead     to    the    same       conclusion.      Judge     Smith

correctly recognized he was without authority to enter the civil

consent judgment.       Inasmuch as the court was without statutory

authority to enter the judgment, we need not address the ethical

implications       regarding       the    use    of     such   judgments    in    plea

negotiations.

    Affirmed.




                                           16                               A-1967-16T1
