Opinion
DOCKET NO. A-4535-12T4
04-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEFF VACHA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel; Daniel S. Rockoff, Assistant Deputy Public Defender, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-08-1257. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel; Daniel S. Rockoff, Assistant Deputy Public Defender, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Jeff Vacha, appeals the denial of his admission into the Pretrial Intervention (PTI) Program. We affirm.
Between May 22 to May 25, 2012, defendant was at Retro Fitness in Ramsey, New Jersey. While there he entered the locker room and took property from open lockers, including debit cards, credit cards, cash and a watch. Police conducted an investigation after receiving complaints about missing items. As a result of the investigation, defendant was captured on video attempting to use a stolen debit card at an ATM; which conduct defendant later admitted to police.
Defendant was charged in an indictment with third-degree theft, contrary to N.J.S.A. 2C:20-3; fourth-degree attempted theft, contrary to N.J.S.A. 2C:20-4 and N.J.S.A. 2C:5-1; fourth-degree impersonating the identity of another, contrary to N.J.S.A. 2C:21-17a(1); fourth-degree credit card theft, contrary to N.J.S.A. 2C:21-6c(1); and fourth-degree theft, contrary to N.J.S.A. 2C:20-3.
Defendant applied for admission into PTI. The PTI Director (Director) rejected defendant's application. The Director premised the rejection upon defendant's non-payment of a fine from a prior conviction for disorderly conduct, and a pending charge stemming from another incident. The Director noted that since defendant's prior record and pending charges were "of a similar nature," PTI was "unlikely to deter" defendant in the future. The Prosecutor adopted the reasoning of the Director in concluding defendant was not a suitable candidate for PTI. Defendant appealed the rejection to the Law Division. The Law Division judge affirmed.
On appeal, defendant argues the relevant PTI admission factors were not considered by the Prosecutor. We disagree.
Judicial review of the Prosecutor's decision for PTI is severely limited. State v. Nwobu, 139 N.J. 236, 246 (1995); State v. Hermann, 80 N.J. 122, 128 (1979). Prosecutors have wide latitude in deciding whom to divert into the PTI program and whom to prosecute. Nwobu, supra, 139 N.J. at 246. Courts grant "enhanced" or "extra" deference to that decision. Ibid.; accord State v. Baynes, 148 N.J. 434, 443-44 (1997). "Judicial review serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord Nwobu, supra, 139 N.J. at 246; State v. DeMarco, 107 N.J. 562, 566 (1987).
Consequently, a reviewing court may order a defendant into PTI over the prosecutor's objection only if the defendant can "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion." State v. Wallace, 146 N.J. 576, 582 (1996) (quoting Leonardis, supra, 73 N.J. at 382) (alteration in original); accord Baynes, supra, 148 N.J. at 444.
In State v. Bender, 80 N.J. 84, 93 (1979), the Supreme Court explained in detail the definition of patent and gross abuse of discretion in the PTI context:
Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.
[(Citations omitted).]
In the letter rejecting the application, the Director cited the PTI guidelines. Specifically, the Director cited Guideline 3(e) and Guideline 1(d), noting active outstanding bench warrants issued for the defendant. The Director also cited Guideline 1(e), noting the "similar nature" of defendant's past and current offenses. The Director further cited Guideline 5, as defendant provided false information by stating he had no prior arrests or charges. Defendant had one prior adult arrest and four charges as a juvenile.
The "Guidelines for Operation of Pretrial Intervention in New Jersey" are contained in Pressler & Verniero, Current N.J. Court Rules, 1166-67 (2015), immediately following Rule 3:28, the rule that provides the procedure for PTI applications.
Upon review of the record in light of the highly deferential standard, we conclude the determination to reject defendant's PTI application was premised upon relevant and appropriate factors and did not "subvert the goals" of PTI.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION