Opinion
DOCKET NO. A-3812-13T1
04-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANGELO L. VARGAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lilian Kayed, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-05-0976. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lilian Kayed, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Angelo L. Vargas appeals from the order of the Law Division, Criminal Part upholding the prosecutor's denial of defendant's application for Pretrial Intervention (PTI), a diversionary program subject to review and approval by both the vicinage's Criminal Division manager or his or her designee and the county Prosecutor's Office. R. 3:28(f). After reviewing the record developed before the trial court and mindful of our standard of review, we affirm.
A Hudson County Grand Jury indicted defendant and three other individuals, charging them with third degree burglary, N.J.S.A. 2C:18-2, third degree theft by unlawful taking, N.J.S.A. 2C:20-3, and third degree conspiracy to commit theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:5-2. All of the named defendants applied for and were denied admission into PTI. The following facts are taken directly from defendant's appellate brief. The State has agreed to adopt these facts for purposes of this appeal.
I
On January 9, 2013, two Jersey City Police Officers responded to a call reporting theft of cellphones from a T-Mobil kiosk at the Newport Center Mall (Mall). At the time, defendant and his three codefendants were employed by the Mall as security guards. Defendant was twenty-six years old, a high school graduate, and had a record of steady employment in similar security guard positions. When the two Jersey City Police Officers responded, they were greeted by codefendant Nosher Khawja, who was employed by the Mall as a security guard supervisor. Khawja told the responding officers that he and the three codefendant security guards discovered the theft when they were patrolling the Mall during the early morning hours, when it was closed to the public.
As described by Khawja, the four guards found a T-Mobile bag containing cellphones and cash by a pillar near the T-Mobile kiosk. The kiosk appeared to be "unsecured" with the cash register drawer opened. Khawja gave the two Jersey City Police Officers the T-Mobile bag containing $1000 in cash and several cellphones. The following day, Jersey City Police Detectives obtained a copy of a security surveillance video recording of the kiosk from T-Mobile's loss prevention department. As described by the Detectives and the Mall Security Director Taryn Oolovshy, the surveillance videotape showed the four codefendants taking the reported stolen cellphones from the kiosk.
Armed with this evidence, Jersey City Detectives first interrogated codefendant Andrea G. Ramirez about the event leading to the discovery of the T-Mobile bag. Ramirez at first denied any criminal involvement. Her position immediately changed, however, when the Detectives informed her of the existence of the surveillance videotape. According to Ramirez, she was patrolling the Mall at approximately four o'clock in the morning of January 9, 2013, when she noticed the door of the T-Mobile kiosk was opened and the safe inside was ajar. She reported the incident to the security dispatcher who sent Khawja, Ramos, and Vargas to investigate. After conducting a brief search of the area, they returned to the kiosk. At this point, Ramos discovered a bag containing cash and cellphones inside the safe. Ramirez told the Detectives that Ramos was the one who suggested taking the cash and cellphones because he was in a financial "rut."
Ramirez claimed the four discussed whether to take the cash and cellphones for over thirty minutes. They finally decided to take the cellphones and leave the cash. The plan called for Ramos to sell the cellphones and split the proceeds four ways. Ramirez also claimed Ramos was the one who "took charge of the situation" and directed her to conceal the cellphones in a cardboard box that Ramos later placed in his car. Ramos also told her to place the cash and a few cellphones in a plastic bag to turnover to the police officers who responded to the call. According to Ramirez, the group also agreed to tell the police that they saw an African-American man with a backpack leave the scene of the theft.
Against these facts, the Hudson County Prosecutor's Office rejected defendant's PTI application based on (1) the nature of the offense; (2) the facts of the case; (3) the victim's desire to hold defendant responsible to pay restitution as part of a sentence imposed by a court, as opposed to a condition of participation in PTI; and (4) society's interest in prosecuting those who are entrusted to protect private property, which in this case, outweighs the deterrence through rehabilitation available to those admitted into PTI.
The record does not include the position of the vicinage's Criminal Division manager. --------
Defendant appealed the prosecutor's rejection to the vicinage's designated PTI judge. R. 3:28(a). The judge heard oral argument with respect to the appeals filed by all four defendants in one hearing. At the conclusion of this omnibus oral argument session, the judge denied all four appeals. The judge placed on the record his reasons for upholding the prosecutor's denial of all four PTI applications, identifying each defendant by name and thereafter explaining the basis for his decision.
With respect to Vargas, after describing the deferential standard of review a trial court must apply to determine whether to overturn a prosecutor's denial of an application for admittance into PTI, the judge made the following findings:
Initially, the defendant was employed as a security guard entrusted to protect the
Mall's premises and merchandise. This crime in this case involves a breach of public trust by the defendant. And the needs of society to prosecute [those] in positions of trust outweigh any supervisory treatment of the defendant.
For the forgoing reasons, the Prosecutor's rejection of PTI does not constitute a patent gross abuse of discretion. Defendant's motion . . . [to be admitted into] the PTI program is denied.
Defendant thereafter entered into a negotiated agreement with the State through which he pled guilty to one count of conspiracy to commit theft, amended to a fourth degree offense. Consistent with the terms of the plea agreement, the trial judge sentenced defendant to a one-year term of probation subject to performing one hundred hours of community service, obtaining and maintaining employment, submitting to random urine screening, and paying the mandatory fines and penalties. The Judgment of Conviction also notes the court was to conduct a restitution hearing on January 31, 2014. The record does not reveal the outcome of the restitution hearing.
Against this record, defendant now appeals raising the following arguments:
POINT I: THE ORDER DENYING VARGAS'S PTI APPEAL MUST BE REVERSED BECAUSE THE TRIAL COURT MISAPPLIED PTI GUIDELINE 3(i), AND BECAUSE THE PROSECUTOR'S REJECTION, OVER THE RECOMMENDATION OF THE CRIMINAL DIVISION MANAGER, CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETAION.
A. The Trial Judge Misapplied PTI Guideline 3(i).
B. The Prosecutor's Rejection Constituted A Patent And Gross Abuse Of Discretion.
Our Supreme Court has recently examined and reaffirmed the standard we must apply to review a prosecutor's rejection of a PTI application.
In considering and evaluating information bearing upon a defendant's admission into Pretrial Intervention, prosecutors are granted broad discretion to determine if a defendant should be diverted. This discretion arises out of "the fundamental responsibility of prosecutors for deciding whom to prosecute." Accordingly, to overturn a prosecutor's decision to exclude a defendant from the program, the defendant must "clearly and convincingly" show that the decision was a "patent and gross abuse of . . . discretion."
When a reviewing court determines that the "prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and gross abuse of discretion," the reviewing court may remand to the prosecutor for further consideration. Remand is the proper remedy when, for example, the prosecutor considers inappropriate factors, or fails to consider relevant factors. A remand to the prosecutor affords an opportunity to apply the standards set forth by the court "without supplanting the prosecutor's primacy in determining whether [Pretrial Intervention] is appropriate in individual cases."
[State v. K.S., 220 N.J. 190, 199-200 (2015) (alterations in original) (citations omitted).]
Here, the reviewing court properly considered and gave due deference to the prosecutor's focus on defendant's status as a security guard as a particularly significant factor weighing against his admission into this diversionary program. The PTI judge properly noted defendant was expressly hired to guard and protect the property of the businesses that operate within the confines of the Mall. Working in concert with his fellow security guards, defendant took advantage of this position of trust to carry out this criminal conspiracy.
From this record, there is no factual or legal basis to conclude the prosecutor exercised her discretionary authority in an arbitrary or capricious manner. Defendant did not present any evidence to demonstrate "clearly and convincingly" that the prosecutor's decision was a "patent and gross abuse of discretion." Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION