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”, 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. Defendant appealed, arguing the trial court lacked authority to impose fines pursuant to the Act. 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. The State posited a criminal court has the power to impose “any civil penalty.” We found the trial court did not have authority to impose fines as civil penalties under the Act because the Legislature specifically provided that the Commissioner was required to institute a civil action. Likewise, here, there is no law that allows the entry of a civil consent judgment as a penalty.
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. One of the amendments, clarifying that payment of restitution may be a condition of probation, did not include payment of a penalty as a condition of probation. 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. Since 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.
The judgment of the Gloucester County Superior Court was affirmed. The appellate panel alluded to an ethical issue that is also a hot topic these days regarding civil forfeitures. In a nutshell, allowing defendants to offer money or property as part of the resolution of their criminal case is a roundabout way of paying the prosecutor’s office and/or victim for a desired criminal case outcome. It arguably constitutes obstruction of justice, among other criminal offenses.
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