Summary
dismissing appeal of Resentencing Panel decision requiring participant to pay restitution in lump sum or be removed from the Program
Summary of this case from Smart v. Admin. Office of the CourtsOpinion
DOCKET NO. A-0345-13T2
07-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALAN BARTOLOZZI, a/k/a ALAN R. BARTOLOZZI, Defendant-Appellant.
Milagros Camacho argued the cause for appellant (Camacho Gardner & Associates, L.L.P., attorneys; Donald L. Gardner, of counsel; Bradley A. Latino, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 10-02-0243 and 10-08-1431. Milagros Camacho argued the cause for appellant (Camacho Gardner & Associates, L.L.P., attorneys; Donald L. Gardner, of counsel; Bradley A. Latino, on the brief). Respondent has not filed a brief. PER CURIAM
Defendant Alan Bartolozzi appeals from a decision by the ISP Resentencing Panel requiring him to pay to the State his accumulated pension contributions as a condition of avoiding re-incarceration. The State takes no position on defendant's request. We dismiss defendant's appeal under Rule: 3:21-10(e).
ISP (Intensive Supervision Program) is a program where prisoners are afforded the opportunity to work their way back into the community under intensive supervision. New Jersey ISP program was commenced in 1983 under the direction of the Office of the Courts, and was designed as an intermediate form of punishment, less costly than prison, but much more onerous than traditional probation would be. --------
Defendant was formerly employed as the Tax Collector for the City of Secaucus since 1985. The "ISP Assessment Report" reflects that a 2009 audit of his office revealed that more than $777,000 was misappropriated and unaccounted for over at least a five-year period of time. On June 24, 2009, defendant was suspended without pay; and, on August 17, 2010, he was indicted on two counts of theft, two counts of official misconduct, extortion, and misappropriating entrusted government property.
On September 17, 2010, defendant pled guilty to one count of second-degree theft by unlawful taking, N.J.S.A. 2C:20-3. On July 28, 2011, he was sentenced to seven years in prison, and was ordered to pay restitution. The amount of restitution was to be determined at a subsequent hearing.
Defendant was also previously employed as the treasurer for the Secaucus Public Employees Association Union. In that capacity, he was accused of misappropriating $24,365.00, and was indicted on February 9, 2010, on one count of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. Defendant pled guilty to the charge on March 22, 2010, and was later sentenced to three years in prison, to run concurrently with his other sentence.
In November 2011, defendant applied to the ISP program. On July 10, 2012, after defendant's application, but before defendant was accepted into ISP, the State informed the sentencing court that it would no longer be seeking restitution; the town was receiving full reimbursement through its bonding and insurance companies. The State also advised the court that these companies could seek civil relief for reimbursement from defendant. Consequently, on July 11, 2012, defendant's judgment of conviction was amended to remove the order to pay restitution.
Thereafter, on September 20, 2012, defendant signed his ISP participation agreement. As part of his agreement, he agreed to pay a Violent Crimes Compensation Board penalty of $100.00, a Law Enforcement Officers Training penalty of $30.00, a Safe Neighborhoods Services Fund assessment of $150.00, and an ISP Cost of Supervision assessment of $1,500.00. Defendant also acknowledged that he was required to satisfy the following special condition imposed by the ISP Resentencing Panel: "Restitution set for $75,000.00."
Meanwhile, on August 1, 2011, defendant had filed an application with the Public Employees' Retirement System, requesting early retirement benefits. His application was denied, but he was permitted to withdraw his accumulated pension contributions. On June 3, 2013, defendant was refunded twenty-four years' worth of contributions, totaling $73,239.90.
Upon receipt of the check, defendant forwarded it to his attorney for deposit in escrow. Defendant then reported receipt of the check to his ISP officer, who demanded the pension money be immediately turned over to ISP in its entirety. The ISP officer demanded the money within a particular period of time, or defendant would be subject to immediate re-incarceration. Defendant complied, and turned over the pension payment to his ISP officer.
On August 5, 2013, defendant argued before a three-judge ISP Resentencing Panel that he should not have to pay the entire pension contribution at one time, but that he should be allowed to continue to make monthly payments of $250.00 per month toward restitution, as he had previously agreed. The resentencing panel gave defendant the option of either forfeiting the $73,239.90, or going back to jail. Defendant chose to remain out of jail, but filed this appeal.
Defendant raises the following points on appeal:
Point One — I.S.P. cannot order restitution or change the method of defendant's payment without a plenary hearing.
Point Two — Seizure of the refund constitutes double jeopardy and/or violates fundamental fairness under the state and federal constitutions (not raised below).
We do not review decisions made concerning admission or resentencing in the ISP program. Rule: 3:21-10(e) states:
Intensive Supervision. Motions for change of custodial sentence and entry into the Intensive Supervision Program, as provided for in paragraph (b) of this rule, shall be addressed entirely to the sound discretion of the three-judge panel assigned to hear them. Because of the nature of the program, there shall be no administrative or judicial review at the several levels of eligibility established under the program. No further appellate review of the panel's substantive decision shall be afforded. The three-judge panel shall have the authority to resentence offenders, in accordance with applicable statutes, in the event they fail to perform satisfactorily following entry into the program.
This appeal raises no issues of constitutional dimension that would require us to make an exception to this Rule.
The appeal is dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION