A convicted thief isn't entitled to relief from making restitution, despite his argument that the victim's winnings in a related civil case would amount to double recovery.
A New Jersey appeals court ruled Tuesday that a trial judge properly denied a request to modify a $35,000 restitution order for a man who pleaded guilty to conspiracy to stealing funds from a construction project at Newark Central High School.
Craig Maltese admitted that he conspired with others to divert $105,000 in state funds earmarked for a masonry subcontractor, C.I.N. Construction, to a company owned by his family, M.T. Consulting. He pleaded guilty in March 2009 to one count of third-degree conspiracy to commit theft and agreed to pay $35,000 to C.I.N.
C.I.N. later filed a civil suit in Superior Court in Essex County against Maltese and the general contractor on the school project, Hunt Construction Group. Maltese was ultimately dismissed as a party from that case, which ended in a confidential settlement.
Maltese sought details of the settlement from Hunt's counsel, to no avail. In February 2012, he still owed $31,691 on the restitution order, but it's unknown how much of that is unpaid fines and fees as opposed to unpaid restitution.
Then, in March 2012, he moved in the Middlesex County Criminal Part to vacate the restitution order and return any monies he paid previously.
In support of his motion, Maltese argued that the settlement in the civil case could result in a double recovery for C.I.N., although he conceded he could not establish that fact. He cited N.J.S.A. 2C:43-3h, which states that restitution paid to a victim shall not exceed the victim's losses. Furthermore, without access to the settlement agreement, he implied that the victim was obligated to prove it was not overcompensated.
Superior Court Judge Bradley Ferencz denied the motion. He ordered Maltese to continue paying restitution to the Probation Department. To avoid double recovery, he ordered that C.I.N. "shall not accept any monies over and above the $35,000 owed."
Ferencz also ordered that if the harm caused by the defendant was compensated by a third party, such as an insurer or a party to a confidential settlement, then Maltese's restitution should be paid to that third party. The order also stated that if a dispute arises between the parties over what was paid in the confidential settlement, the aggrieved party should apply for relief in the Law Division, Civil Part.
Maltese appealed. Judges Mitchel Ostrer and Margaret Hayden affirmed the order by Ferencz, finding no basis in court rules to vacate restitution and refund payments made.
Furthermore, although N.J.S.A. 2C:43-3h forbids payment of restitution in excess of a victim's loss, there is no evidence that Maltese's sentence was unauthorized when it was imposed, the panel said.
And third parties that might be obligated to compensate the injured party — either an insurance company or a jointly and severally liable tortfeasor — would presumably take steps to avoid overcompensating the victim, the panel said.
The restitution statute allows a defendant to be ordered to pay restitution to a third party, and Ferencz appropriately assured that payments from Maltese would be directed to such third parties if the victim has already been made whole, the court said.
Alleged subsequent payments to the victim by third parties do not justify vacation of a restitution order, the panel said.
The record before the court does not demonstrate that the victim was likely to receive a double recovery. And defendant provided no pleadings from the civil suit to show they relate to the same harm addressed by the restitution order, the panel said.
The motion to vacate the restititution order was also too late, filed three years after the judgment was entered. Motions to change a sentence usually must be filed within 60 days. None of the exceptions to that rule listed at R. 3:21-10(b), such as illness or infirmity of the defendant or correcting an unlawful sentence, was present in this case.
The lawyer for Maltese, Elias Schneider, who heads an East Brunswick firm, was on vacation and could not be reached for comment.
The state was represented in the case by Deputy Attorney General Pearl Minato. A spokesman for the Attorney General's Office, Peter Aseltine, said his department was pleased that the court refused to modify the defendant's sentence.