STATE OF NEW JERSEY v. ARMAND A. DeANGELIS

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0702-07T40702-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARMAND A. DeANGELIS,

Defendant-Appellant.

______________________________________________

 

Argued November 19, 2008 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 87-12-0191S and 87-04-00702I.

Michael D'Alessio, Jr. argued the cause for appellant (Walder, Hayden & Brogan, attorneys; Mr. D'Alessio, of counsel; Mr. D'Allessio and Leigh-Anne Mulrey, on the brief).

Paul Salvatoriello, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Mr. Salvatoriello, of counsel and on the brief).

PER CURIAM

We review a judgment that imposed a three-year prison term on a finding that defendant violated the restitution condition of his probationary sentence. Due to differences between what the sentencing judge held and what he later memorialized in an order -- and because of the sentencing judge's intervening retirement -- another judge attempted to ascertain the sentencing judge's intentions and concluded defendant was obligated to pay $1,100,000, as the State argued, and not $600,000, as defendant argued. Because insufficient weight was given to the sentencing transcript, which supports defendant's argument, we reverse.

At the conclusion of a trial, a jury convicted defendant of four counts of misapplication of entrusted property, N.J.S.A. 2C:21-15, and five counts of unlawful offer, sale, or purchase of securities, N.J.S.A. 49:3-52. Defendant was sentenced to a three-year prison term on the misapplication convictions and a concurrent eighteen-month prison term on the securities convictions. Expressing, however, an interest in obtaining restitution for the victims, the judge invited a motion for reconsideration. Such a motion was filed, and after hearing testimony on the subject of restitution, the sentencing judge indicated he had "come up with a formula for that restitution." As a result, on October 29, 1992, the judge modified the sentence, this time imposing two consecutive five-year probationary terms, conditioned upon a two-week county jail term and restitution.

The restitution terms were the product of extensive proceedings. In his oral decision of October 29, 1992, the sentencing judge expressed his intention to require a minimum of $600,000 in restitution. An order memorializing the judge's determination, however, was not entered until June 29, 1993, eight months after the oral decision; the order directed that defendant pay $1,100,000 in restitution.

On October 16, 2002, less than two weeks prior to the termination of the ten-year probationary term, defendant was charged with violating probation by failing to make payments that the State claims were required by the court's restitution order. Due to the sentencing judge's intervening retirement, another judge (hereafter "the trial judge") was required to ascertain the terms of restitution and determine whether those terms were willfully violated.

In considering what the retired sentencing judge meant, the trial court had recourse to two things: the June 29, 1993 order, which expressly states that defendant was to pay $1,100,000 in restitution, and the oral decision of October 29, 1992, which includes the sentencing judge's holding that defendant was required to pay a minimum amount of restitution of $600,000. Because it was stipulated that defendant paid $682,000 during the ten-year probationary term, defendant argued that he met the restitution requirements revealed by the sentencing judge's oral decision. On the other hand, the State argued that the written order unequivocally imposed an obligation to pay $1,100,000 in restitution. After considering the documentary evidence and the argument of counsel, the trial judge concluded, in his August 27, 2003 oral decision, that the sentencing judge required defendant's payment of $1,100,000 by the end of the ten-year probationary term.

Following that determination, the trial judge heard testimony from two probation officers and defendant. In a subsequent oral decision, the trial judge found that defendant willfully violated the restitution conditions of his probation and sentenced defendant to a three-year prison term, to run consecutively to a federal prison term defendant was then serving in Florida.

Defendant timely appealed, raising the following arguments for our consideration:

I. THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT WILLFULLY VIOLATED PROBATION BY FAILING TO MAKE RESTITUTION & IMPOSING A TERM OF IMPRISONMENT.

A. The Law Is Settled That The Sen-tencing Transcript Is The True Source Of The Sentence.

B. In Light Of The Sentencing Trans-cript, Defendant Cannot Be Found To Have Willfully Violated Probation.

C. Even If There Is Further Collection To Be Made, It Should Be Handled Pursuant To The Normal Collection Process.

Because we conclude that the sentencing judge held that defendant was only obligated to pay $600,000 in restitution to successfully complete the conditions of probation, we reverse.

In reaching this conclusion, we first reject the State's position that we should be guided by the June 29, 1993 order and its clear statement that defendant was required to pay $1,100,000 in restitution; it is the sentencing judge's oral decision that constitutes the most illuminating evidence of what was intended despite the conflicting terms contained in an order entered eight months later. "[T]he sentencing transcript is 'the true source of the sentence.'" State v. Walker, 322 N.J. Super. 535, 556 (App. Div.) (quoting State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956)), certif. denied, 162 N.J. 487 (1999).

Second, we reject the State's contention that the trial judge's findings of fact regarding the sentencing judge's intentions in crafting the terms of restitution are entitled to our deference. The standard of appellate review of facts found by a trial judge is based upon an understanding that the trial judge is in a better position to observe the witnesses and to assess their demeanor and overall credibility. See State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). Here, no one testified and, as a result, the judge's findings were based solely on the sentencing judge's written and spoken words that are contained in a transcript and an order. Because we are in no different position than the trial judge in ascertaining the meaning of those words, we need not defer to the trial judge's interpretation. See, e.g., Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (holding that an appellate court need not defer to a final agency decision of the Director of the Division on Civil Rights because the Director's decision regarding the credibility of witnesses was based upon a review of "the transcripts and documentary evidence submitted by the parties"); Jock v. Zoning Bd. of Adjust., Twp. of Wall, 371 N.J. Super. 547, 554 (App. Div. 2004) (holding that the findings of the board of adjustment and the trial court were not entitled to deference because those tribunals reviewed deposition transcripts and "had no opportunity to see these witnesses testify or assess their credibility"), rev'd on other grounds, 184 N.J. 562 (2005).

There is no doubt that, during the 1992 restitution hearing, it was well understood that the victims of defendant's offenses were damaged in the amount of $1,230,940. In arguing that defendant was only required to make restitution in the amount of $600,000 -- approximately half the damage caused -- defendant refers to the sentencing judge's delineation of four sources that would supply the restitution he directed: (1) approximately $210,000 on deposit in a related civil matter -- the sentencing judge held that this fund was to "be utilized as quickly as possible for the purposes of restitution"; (2) defendant's house in Florida, which the sentencing judge directed to be sold no later than the end of its mortgage period, or seven years -- the sentencing judge stated that he believed this asset would "[i]n no event" yield less than $135,000, but hoped for more; (3) a monthly $2,000 payment, which the sentencing judge observed would "bring[] all these items up to a total" of $585,000; and (4) an additional $15,000 payment to be made by January 1, 1994, which the judge held would bring the restitution amount to a "grand total minimal amount" of $600,000.

As if the total of these sources did not adequately demonstrate that the sentencing judge intended to require defendant to pay only half of the total damages suffered by the victims, rather than the whole as the State argues, the sentencing judge thoroughly explained his intentions. He said that he had considered the total damages caused by both defendant and his co-defendant. In recognizing that the co-defendant was acquitted, and that "some of th[e] money went to [the co-defendant]," the sentencing judge explained that he "hope[d] that in the civil action some moneys [would] be recovered from [both] of the defendants that [would] also be utilized in the payment of the creditors," observing that co-defendant's acquittal did not mean that he was not civilly liable to the victims. As a result, the sentencing judge stated that he intended to do what he "frequently [did] in criminal cases" and ordered "one defendant out of two to pay half," and acknowledged that he was contemplating making the victims whole by making defendant pay "for that half for which he [was] responsible" (emphasis added). "That[]," the sentencing judge concluded, is "how I came up with six hundred grand." He summed up the entire sentence that he had imposed in the following way:

The bottom line is two weeks in jail, ten years probation. Restitution is six hundred thousand dollars minimum. The restitution order that's going to be prepared will also order restitution up to the full amount of the agreed upon debt owed which should be stated. It's in the file here but, again, I don't want to dig through it at this point. Giving, of course, full credit for all amounts paid to the victims as a result of the civil action . . . .

These comments and their conflict with the restitution order fuel the present controversy. The declaration that restitution should be a "minimum" of $600,000, standing alone, would leave no doubt that defendant has paid what was required of him during the probationary term. But the sentencing judge's additional comment -- that the order to be entered should require "restitution up to the full amount of the agreed upon debt" -- provides support for the State's argument that defendant was required to pay more.

Although the State's contention that defendant was ordered to pay $1,100,000, which was adopted by the trial judge, is not implausible, its persuasiveness rests on an assumption that all the other things that the sentencing judge said during the hearing were meaningless. If the sentencing judge had meant to order restitution of $1,100,000, there would have been no reason for him to go through the trouble of explaining why and how he had set a "minimum" amount of restitution of approximately half the total damage. Why, in short, would the sentencing judge have done anything but enter an order compelling restitution for the full amount of the damage done if that is what he meant to have occur by the end of the ten-year probationary period?

Although the June 29, 1993 order somewhat conforms to the sentencing judge's comment that restitution be ordered "up to the full amount of the agreed upon debt owed," and accurately conforms to the sources from which restitution would be made, it contains no reference to the sentencing judge's direction that defendant was only compelled to pay half. Moreover, to accept the State's argument that defendant was required to pay $1,100,000, it would have to be assumed that the sentencing judge meant for defendant to make a balloon payment in excess of $500,000 at the end of the ten-year probationary term -- a circumstance not mentioned by the sentencing judge in his oral decision and only implicitly suggested by paragraph 6 of the June 23, 1993 restitution order. See n.2, supra.

We agree with defendant's argument that the sentencing judge's true intent was to compel the payment of only $600,000. The judge referred to this amount as the "minimum" required because he understood that a greater amount might accrue from the liquidation of the assets he identified as the vehicles for restitution. For example, one of the identified assets was defendant's Florida home. The sentencing judge recognized the Florida property would not be immediately sold; he assumed it would yield a certain amount, but understood there was a lack of certainty about the ultimate sales price. The sentencing judge's decision reveals his intention that the property might sell for more than the assumed amount and concluded -- in imposing a minimum amount of restitution of $600,000 -- that the sum of the particular sources might yield a greater amount than $600,000 and, if so, that the greater amount yielded would be made available to the victims, not refunded to defendant.

In the final analysis, although plausible, we part company with the trial judge's approach to the problem because -- if the sentencing judge truly intended to require restitution for the entire amount -- we can find no meaning in the sentencing judge's statement that defendant was minimally obligated to pay only half of the damages sustained by the victims. And, to accept the State's theory that the sentencing judge intended to compel restitution of $1,100,000, we would have to adopt the incongruous conclusion that the sentencing judge carefully outlined the sources of restitution and required a monthly payment of $2,000 during the ten-year probationary period -- in order to make available to the victims approximately $600,000 -- only to then expect defendant to make a balloon payment, at the end of the ten-year period, of more than $500,000 -- a balloon payment never mentioned in the sentencing judge's oral decision. Although we share the trial judge's view that the matter was far from clear due to the conflict between the sentencing transcript and the subsequent order -- and the sentencing judge's intervening retirement -- we cannot endorse the judge's adoption of the State's theory because, to do so, would render meaningless so much of what the sentencing judge held in his oral decision.

Having concluded that defendant was not ordered to make restitution beyond the $682,000 he paid by the end of the probationary term, the judgment that defendant violated the terms of probation must be reversed. In light of this holding, we need not reach defendant's argument that these circumstances precluded the trial judge's determination that defendant had willfully violated the terms of probation.

Reversed.

Typical of other documents admitted into evidence on this aspect of the case was a document entitled "Conditions for Adults on Probation," which was executed by defendant on February 8, 1993. This document is a form in which $1,100,000 was written into a space delineated "Restitution." Considering the circumstances, that unadorned statement regarding restitution provides no illumination as to the sentencing judge's intentions. As a review of the record reveals, the matter was far more nuanced; defendant's execution of this document hardly amounts to an admission as to what the sentencing judge intended, nor should this document serve to override the sentencing judge's oral ruling on the matter.

The June 29, 1993 restitution order directed that defendant pay $1,100,000 in restitution consisting of the following provisions:

1. Mr. DeAngelis shall pay the sum of $2,000.00 on the first of each month commencing December 1, 1992, payable to the Middlesex County Probation Department for a period of ten (10) years, for a total of $240,000.00.

2. Mr. DeAngelis shall pay the additional sum of $15,000.00 to the Middlesex County Probation Department on or before the first day of January, 1994.

3. It is intended that the "custodia legis" account funds of $93,436.74 are to be utilized as quickly as possible for purposes of restitution in this case. The balance of $13,227.50 from the fund under the control of the undersigned judge may be utilized for the purpose of reimbursing the $210,000.00 fund account if same is depleted.

4. Mr. DeAngelis is to continue paying the obligations relating to the first and second mortgages on the home in Florida, and is to maintain the home in good repair. He is not to transfer, assign or further encumber the Florida home. No later than seven (7) years from this date, Mr. DeAngelis is to sell the Florida home and the proceeds of the sale, but not less than $135,000.00 shall be paid into the restitutionary account.

5. Mr. DeAngelis shall be entitled to a credit to reduce his restitutionary obliga-tion to the extent that the individual investors named herein above receive payment from defendant through any other judgement or source emanating from Mr. DeAngelis.

6. Mr. DeAngelis is ordered to pay by the end of his probationary period, any sums of money which were contemplated by this order but were not made available, with the exception of the monthly payments and the lump sum payment due in January, 1994.

We also recognize that the order executed by the sentencing judge did not undergo an examination as to its form. Although the record provides no clue as to how the order was prepared or entered, it is clear that, although directed by the sentencing judge, former defense counsel failed to submit a proposed order. Had he done so, any brooding uncertainty about what the sentencing judge truly intended would have been confronted and resolved by the sentencing judge. Ultimately, it would appear to us that the judge executed what defendant refers to as an "institutional order," i.e., an order prepared by the clerk or the probation office.

We find no significance in the other documents and letters regarding the terms of probation that were issued or exchanged after the adjudication of the issue. It is the judge's holding and not how some other government official -- or even defendant -- interpreted the holding that matters.

We are mindful that a divided Supreme Court of the United States adopted a more deferential approach in reviewing trial court findings in federal cases, Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S. Ct. 1504, 1511-12, 84 L. Ed. 2d 518, 528-29 (1985), citing the expertise developed by trial judges in making findings of fact, id. at 574, 105 S. Ct. at 1512, 84 L. Ed. 2d at 529. In light of Clowes, it would appear our Supreme Court would not follow the Anderson approach. However, we would also observe that the trial judge's findings result from his examination of another judge's oral decision and written order -- a task that falls within the expertise of appellate courts.

It is unclear how the round number of $1,100,000 came to find its place in the June 29, 1993 order. The parties agreed that the entire amount of damage caused was $1,230,940, and the sentencing judge, in giving his "bottom line" as to the terms of the sentence, referred to the order's inclusion of "the full amount of the agreed upon debt owed which should be stated. It's in the file here but, again, I don't want to dig through it at this point." We assume he meant by this $1,230,940 figure, not the $1,100,000 figure which made its way into the June 29, 1993 order.

As we have observed, it was then understood that the full amount of damage to the victims was $1,230,940, but the order inexplicably fixes that amount at $1,100,000.

The first paragraph of the June 29, 1993 order mandates that defendant pay $1,100,000 in restitution; later paragraphs set forth the four sources identified by the sentencing judge in his oral decision. The order makes no mention of a balloon payment for the difference between the funds provided through the four sources and $1,100,000. Paragraph 6 of the June 29, 1993 order purports to establish a requirement that defendant pay by the end of the probationary term "any sums of money which were contemplated by this order [but] were not made available." This ambiguous statement is as close as the order gets to mentioning the purported requirement of a balloon payment in excess of $500,000 upon which defendant's conviction for violating probation necessarily rests.

(continued)

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A-0702-07T4

December 15, 2008