2C:44-2. Criteria for Imposing Fines and Restitutions

a. The court may sentence a defendant to pay a fine in addition to a sentence of imprisonment or probation if:

(1) The defendant has derived a pecuniary gain from the offense or the court is of opinion that a fine is specially adapted to deterrence of the type of offense involved or to the correction of the offender;

(2) The defendant is able, or given a fair opportunity to do so, will be able to pay the fine; and

(3) The fine will not prevent the defendant from making restitution to the victim of the offense.

b. The court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment or probation that may be imposed if:

(1) The victim, or in the case of a homicide, the nearest relative of the victim, suffered a loss; and

(2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution.

c. (1) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.

(2) In 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. The court shall not reduce a restitution award by any amount that the victim has received from the Violent Crimes Compensation Board, but shall order the defendant to pay any restitution ordered for a loss previously compensated by the Board to the Violent Crimes Compensation Board. If restitution to more than one person is set at the same time, the court shall set priorities of payment.

d. Nonpayment. When a defendant is sentenced to pay a fine or make restitution, or both, the court shall not impose at the same time an alternative sentence to be served in the event that the fine or restitution is not paid. The response of the court to nonpayment shall be determined only after the fine or restitution has not been paid, as provided in section 2C:46-2.

e. Whenever the maximum potential fine which may be imposed on a conviction for an offense defined in the "Comprehensive Drug Reform Act of 1986," N.J.S. 2C:35-1 et al. depends on the street value of the controlled dangerous substance or controlled substance analog involved and the court intends to impose a fine in excess of the maximum ordinary fine applicable to the offense for which defendant was convicted, and where the fine has not been agreed to pursuant to the provisions of N.J.S.2C:35-12, the court at the time of sentence shall determine the street value at the time and place of the offense based on the amount and purity of the controlled dangerous substance or controlled substance analog involved. The sentencing court's finding as to the street value may be based on expert opinion in the form of live testimony or by affidavit, or by such other means as the court deems appropriate. The court's finding as to street value shall not be subject to modification by an appellate court except upon a showing that the finding was totally lacking in support on the record or was arbitrary or capricious.

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

L.1978, c.95; amended 1979,c.178,s.94; 1987,c.106,s.15; 1991,c.329,s.6.