Opinion
DOCKET NO. A-5443-12T1
03-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KRISTA F. SELIG, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Ashley L. Behre, Legal Assistant, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-06-1195. Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Ashley L. Behre, Legal Assistant, on the brief). PER CURIAM
Defendant Krista F. Selig appealed the denial of Pretrial Intervention (PTI) following her judgment of conviction. That denial was upheld by the Law Division judge. We affirm.
I.
The following facts were admitted by defendant at her plea colloquy, PTI reconsideration hearing, and sentencing. Defendant graduated from law school in 1999, was admitted to the bar, and has since maintained her license to practice law in the State of New York. Defendant had a romantic relationship for several years with co-defendant Frederick Tropeano, with whom she lived before and after he went to federal prison for an unrelated mortgage fraud.
Beginning in 2007, defendant operated a solo practice, Selig Law Group, which opened a business account at HSBC Bank. Defendant, having obtained a license to broker mortgage loans, then established KMPS Mortgage Warehouse (KMPS) with Michael Pupo serving as company president and co-defendant John Kosta serving as vice president. Co-defendant Frederick Tropeano also worked at KMPS hiring loan officers.
Later, co-defendant Silvano Tropeano obtained a brokerage license for Hawthorne Capital, another mortgage brokerage company. There, he erected a fraudulent scheme to funnel funds from mortgage refinance transactions. Pupo, Kosta, and Frederick Tropeano soon joined Silvano Tropeano, slowly shifting their loan efforts to Hawthorne, which eventually opened a new office in Manalapan, New Jersey. Defendant served as a settlement agent for Hawthorne and received fees for her work. She asserted she did not "close any loans on behalf of Hawthorne in New Jersey."
Defendant admitted that in 2008 she "found out there was a Citibank account" in the name of Selig Law Group. Citibank refused to provide her with information about the account because the account did not bear Selig Law Group's tax identification number (TIN), but rather was registered to Selig Law Group under Hawthorne's TIN. Defendant called Silvano Tropeano and Hawthorne's accountant, co-defendant Paul Voltaire, who assured her they would close the account. However, defendant never verified that the account had been closed, and did not notify police of the incident. Defendant said she later learned that Frederick Tropeano "would always tell [his employees] to ignore [defendant's] pleas," and he continued to funnel funds through Selig Law Firm's Citibank account.
In 2009, defendant learned that Frederick Tropeano and Kosta listed her as a Hawthorne closing agent in New Jersey without her permission. Defendant responded by contacting Hawthorne's officers, informing them that she was not licensed to practice in New Jersey and they were not authorized to use her name. Nonetheless, Hawthorne employees later used defendant's name in closings on multiple occasions. Defendant said she asked her co-conspirators not to use her name "[a] few times," but did not report the fraudulent activities to the police, banking department, or insurance underwriter.
In early 2010, defendant became aware that checks purporting to pay off victims' mortgages from the fraudulent Citibank account were not being honored. She again contacted Frederick and Silvano Tropeano and Voltaire. She said they informed her "it was just a mistake." Defendant claimed she "believed them" until "a grievance was filed against [her] with the New York State [Bar Association]." She subsequently contacted Frederick and Silvano Tropeano, who sent her to Hawthorne's lawyer, Eric Salant. Defendant said Salant assured her he "would take care of [the grievance]," and defendant again did not go to the police. Defendant claimed it was not until she learned the Passaic County prosecutor was involved that she realized "there was a problem and there had to be money missing or something." Defendant then contacted the prosecutor and told him of the fraudulent activities.
Ultimately, defendant admitted she knew "at some point in time that there was a fraud being committed," and that her co-defendants "were using [defendant's] name," but she "didn't go to the police."
In 2011, the grand jury issued a 100-count indictment against the defendants. Defendant was charged only in count thirty-two of the indictment, with second-degree conspiracy to commit theft contrary to N.J.S.A. 2C:5-2 (conspiracy) and N.J.S.A. 2C:20-3 (theft). Defendant applied for PTI, but the PTI program director declined to recommend PTI.
On June 13, 2013, defendant pled guilty to third-degree conspiracy to commit theft. The downgrade was pursuant to a plea agreement in consideration for defendant's cooperation, with a recommendation of non-custodial probation in return for truthful testimony at her co-defendants' trial. At her plea colloquy, defendant also indicated she would argue for a civil reservation and the ability to appeal her PTI rejection by separate motion.
After her guilty plea, defendant reapplied for PTI, and was denied by the prosecutor in an extensive memorandum. Defendant appealed to Law Division Judge Honora O'Brien Kilgallen, who held a hearing on June 13, 2013. The judge declined to overturn the prosecutor's decision. On June 21, 2013 the Honorable Ronald L. Reisner sentenced defendant to one year of probation.
Defendant appeals her PTI denial pursuant to R. 3:28(g), arguing:
THE TRIAL COURT ERRED BY AFFIRMING THE PROSECUTOR'S REJECTION OF DEFENDANT'S
ADMISSIO[N] INTO PTI, WHICH, BECAUSE IT FAILED TO CONDUCT AN INDIVIDUALIZED EVALUATION OF THE DEFENDANT, CONSTITUTED AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION.
II.
In reviewing defendant's appeal, we must hew to our "severely limited" scope of review. State v. Negran, 178 N.J. 73, 82 (2003). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996). "Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." State v. Nwobu, 139 N.J. 236, 246 (1995) (citation omitted). Accordingly, courts give prosecutors "'extreme deference,'" ibid. "'broad discretion,'" State v. K.S., 220 N.J. 190, 199 (2015), and "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial," Negran, supra, 178 N.J. at 82.
"In order to overturn a prosecutor's rejection, a defendant must 'clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion.'" State v. Watkins, 193 N.J. 507, 520 (2008). "A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Ibid.
However, when a prosecutor's decision constitutes "an abuse of discretion, but not a patent and gross abuse [of discretion]," "a remand to the prosecutor may be appropriate." State v. Dalglish, 86 N.J. 503, 509 (1981). "Remand is the proper remedy when, for example, the prosecutor considers inappropriate factors, or fails to consider relevant factors." K.S., supra, 220 N.J. at 200.
We apply the same standard as the trial court. Thus, we review the court's affirmance of the prosecutor's decision de novo.
III.
N.J.S.A. 2C:43-12 to -22, Rule 3:28, and the Guidelines for Operation of Pretrial Intervention in New Jersey (Guidelines), reprinted in Pressler & Verniero, Current N.J. Court Rules (2015), set out "a host of factors" a prosecutor may consider. Watkins, supra, 193 N.J. at 520. In denying PTI, the prosecutor relied on "the nature of the offense," N.J.S.A. 2C:43-12(e)(1); "the facts of the case," N.J.S.A. 2C:43-12(e)(2); "the needs and interests of the victim and society," N.J.S.A. 2C:43-12(e)(7); "whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution," N.J.S.A. 2C:43—12(e)(14); and "whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program," N.J.S.A. 2C:43—12(e)(17).
In the initial denial of PTI, the PTI Director also cited defendant's denial of responsibility, the victims of the offense, and the effect on the prosecution of her co-defendants. N.J.S.A. 2C:43-12(e)(3), (7), (16). We do not consider those additional factors because the prosecutor did not rely on them in denying defendant's renewed application for PTI.
Defendant argues that the PTI denial afforded great weight to inappropriate aggravating factors, and did not adequately consider her unique characteristics. However, without evidence to the contrary, this court assumes that the prosecutor has considered all relevant factors in making a PTI decision. Nwobu, supra, 139 N.J. at 249.
A.
With respect to the nature of the offense, the prosecutor noted that defendant "was charged with a second degree crime." "A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor." Pressler & Verniero, supra, Guideline 3(i) to R. 3:28. There is therefore "a presumption against diversion." State v. Caliguiri, 158 N.J. 28, 42 (1999); see Watkins, supra, 193 N.J. at 523; see also Pressler & Verniero, supra, Official Comment on Guideline 3. A defendant may rebut the presumption by "showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable." Pressler & Verniero, supra, Guideline 3(i) to R. 3:28.
A subsequent plea to a third-degree offense "does not retrospectively impugn the soundness of" a prior PTI denial. Nonetheless, defendant reapplied for PTI after she pled guilty to a third-degree offense. The prosecutor pointed out that such a reapplication for PTI after the guilty plea "was not contemplated at the time the plea was entered and the cooperation agreement signed." Our Supreme Court recently emphasized that "[n]one of the laudatory purposes of pretrial intervention are fostered by" the grant of PTI after conviction over the prosecutor's objection. State v. Bell, 217 N.J. 336, 348 (2014). Such concerns are also raised by a grant of PTI over the prosecutor's objection after a valid guilty plea has been entered. State v. Waters, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 6-7).
We need not resolve whether defendant's post-plea PTI application was proper. Regardless, defendant did not remove the presumption against PTI for a defendant charged with a second-degree offense by virtue of her guilty plea to a third-degree offense.
B.
Regarding the facts of the case, defendant claims the prosecutor lumped defendant together with her more culpable co-defendants, treated her as an equal participant, and ascribed to her the full measure of the crime. Defendant argues this constitutes guilt by association because she "neither planned, executed, or benefited from" the actions of her co-defendants.
The prosecutor's memorandum denying PTI did reference the breadth of the conspiracy. The conspiracy targeted twenty-six homeowner victims, many of whom were forced into foreclosure, and also harmed banks, mortgagees, and title insurance companies. The PTI director estimated $7.5 million in damages. However, it is within "the proper range of prosecutorial discretion" to consider "all of the surrounding circumstances of a particular offense." State v. Barrett, 157 N.J. Super. 96, 102 (App. Div. 1978). Defendant pled guilty to joining this conspiracy and thus admitted her involvement in the scheme, which caused significant lasting harm. N.J.S.A. 2C:2—6(b)(4). It was neither irrelevant nor inappropriate to contemplate the entire conspiracy in assessing defendant's request for PTI.
Moreover, the prosecutor's rejection memo also considered defendant's personal role in the crime. The prosecutor noted that defendant's Selig Law Group and the Citibank account in her name were used to execute the fraud by Frederick Tropeano, who was "in charge of [the] criminal enterprise." The prosecutor stressed defendant's "long term, close personal relationship" with Frederick Tropeano, which included "numerous contacts with Frederick Tropeano in the relevant time period." The prosecutor concluded that defendant "knew what [Frederick Tropeano] was doing" but "never stood in his way," and "never reported his activities to law enforcement authorities" until the end. The prosecutor concluded that if defendant "had acted appropriately when she first became aware of Frederick Tropeano's mortgage misdeeds," she could have saved the victims "years of financial chaos."
We note that the prosecutor downgraded defendant's plea to a third-degree offense, meaning that she was being held responsible for conspiracy to commit theft of less than $75,000. See N.J.S.A. 2C:20-2(b)(2)(a), (e).
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The prosecutor disputed defendant's argument that she never benefitted from the conspiracy. The prosecutor noted that Frederick Tropeano used the diverted money to fund an "audacious house" and lavish lifestyle, which defendant shared for some of this period. Moreover, the prosecutor asserted that "there is evidence of money going from Frederick Tropeano's controlled Citibank account into personal accounts" of defendant. In short, the prosecutor conducted an appropriately "individualized evaluation" and properly considered defendant's role in the conspiracy. See Nwobu, supra, 139 N.J. at 253.
C.
As defendant notes, a prosecutor must make determinations based on "an individual defendant's features that bear on his or her amenability to rehabilitation." State v. Baynes, 148 N.J. 434, 442 (1997) (quoting Nwobu, supra, 139 N.J. at 255). Defendant argues the prosecutor did not individually assess her responsiveness to rehabilitation. Defendant claims she is "an ideal candidate" for PTI given her "lack of prior criminal record, her remorse, her willingness to pay restitution and undergo counseling, and [her] educational accomplishment." In fact, the prosecutor reviewed defendant's individual circumstances in detail.
The prosecutor recognized that "defendant has no prior [i]ndictable convictions in the State of New York or the State of New Jersey." He acknowledged defendant's conditional discharge from her DWI conviction, and her subsequent treatment in multiple substance abuse programs, as well as counseling and ongoing treatment for anxiety. The prosecutor thus considered defendant's criminal record and counseling efforts.
The prosecutor observed that while defendant recognized the harm done to her victims and expressed a desire to win the lottery in order to "help these people out," there was no indication in the record of defendant's current willingness or ability to pay restitution. Indeed, the prosecutor pointed out defendant's dire financial situation, including that her significant debt "exceed[ed] her assets by a substantial amount," and that her house was mortgaged for more than it was worth and had gone into foreclosure. Thus, the prosecutor properly considered defendant's willingness and ability to pay restitution.
The prosecutor also considered defendant's education at high school, college and law school. However, as the prosecutor rightfully pointed out, defendant's legal knowledge argued against her PTI claim because she allowed her legal practice to be used in the offense, and as a lawyer she knew of her obligation to report the crime but did not do so for years. As the prosecutor noted, defendant "did not act in accordance with the strictures of her profession." Moreover, defendant's desire to resume the practice of law cannot "be permitted to control the State's judgment in favor of formal criminal prosecution." See State v. Seyler, 323 N.J. Super. 360, 372-73 (App. Div. 1999) (holding that defendant, a medical student, did not qualify for PTI even though criminal prosecution would reflect poorly on his medical board application), aff'd, 163 N.J. 69 (2000).
The prosecutor also considered defendant's remorse, finding it less than earnest. In the PTI interview she "did not accept any responsibility for her actions," taking the position she was "yet another person victimized by Hawthorne Capital." Her minimization of responsibility continued at her guilty plea. Indeed, the prosecutor noted that "defendant vehemently maintains that she was . . . victimized," but "the evidence shows to the contrary." The sentencing judge remarked that defendant's "version of the offense struck [him] as not being consistent with, in all likelihood, a plea" of guilty, and had to question her further to confirm that she was, in fact, guilty. Likewise, defendant conceded that she did not apologize until her sentencing. "Evidence of remorse is diminished when a defendant waits until the last possible moment—the sentencing phase—to express it." State v. Wakefield, 190 N.J. 397, 519 (2007). Therefore, the prosecutor permissibly "believe[d] this defendant has exhibited qualities that are not amenable to traditional programs of rehabilitation."
D.
The remaining factors relied on by the prosecutor remain unchallenged. Judge Kilgallen properly held that "the State correctly considered the needs of the victims and society." N.J.S.A. 2C:43—12(e)(7). The State also "adamantly maintain[ed] that this crime is of such a nature that the need for prosecution substantially outweighs the value of supervisory treatment for the defendant," N.J.S.A. 2C:43-12(e)(14). Finally, "the State firmly believes that the harm done to society by abandoning [defendant's] criminal prosecution [outweighs] the benefits to society from channeling this defendant into a supervisory treatment program," N.J.S.A. 2C:43-12(e)(17).
"[P]rosecutors have been designated to prosecute the criminal business of the State, N.J.S.A. 2A:158-4, and to exercise the discretion whether to prosecute or to refrain from prosecution." State v. Ward, 303 N.J. Super. 47, 52-53 (1997). "Moreover, 'policy decisions, such as which offenses to aggressively prosecute, fall within the domain of the prosecutor, not the judiciary.'" Waters, supra, slip op. at 18.
Thus, the prosecutor detailed a variety of factors taken into account. Defendant has not shown any factor that he did not address. Defendant has not met her burden of showing a patent and gross abuse of discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION