Opinion
DOCKET NO. A-4125-15T1
01-25-2017
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DAVID VUJICIC, Defendant-Respondent.
Lisa Sarnoff Gochman, Legal Assistant, argued the cause for appellant (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Paul H. Heinzel, Assistant Prosecutor, of counsel; Ms. Gochman, on the briefs). Elyse S. Schindel argued the cause for respondent (Hobbie, Corrigan & Bertucio, P.C., attorneys; Edward C. Bertucio and Ms. Schindel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano, Guadagno and Suter. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 16-01-0132. Lisa Sarnoff Gochman, Legal Assistant, argued the cause for appellant (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Paul H. Heinzel, Assistant Prosecutor, of counsel; Ms. Gochman, on the briefs). Elyse S. Schindel argued the cause for respondent (Hobbie, Corrigan & Bertucio, P.C., attorneys; Edward C. Bertucio and Ms. Schindel, on the brief). PER CURIAM
On January 19, 2016, defendant David Vujicic, then twenty-five-years old and without any prior criminal record, pled guilty to a single-count accusation charging him with third-degree theft, N.J.S.A. 2C:20-3(a). Pursuant to the plea bargain, the State agreed to recommend a sentence of three years' imprisonment. In addition, because defendant was a firefighter and vice-president of the Robertsville Volunteer Fire Company (RVFC), and the State alleged his offense touched upon his position, defendant agreed to the entry of an order forfeiting his position and forever barring him from public office. N.J.S.A. 2C:51-2(d). The judge entered such an order on the day of defendant's guilty plea.
Pursuant to the plea agreement, however, defendant reserved the right to apply for admission to the Pre-trial Intervention Program (PTI), seek a sentence of "straight probation" and, in the event his guilty plea was vacated or withdrawn, contest that he was "a public official." Under oath, defendant admitted that between May 1, 2013 and July 18, 2014, while acting as a volunteer fireman, he unlawfully took money that belonged to the RVFC.
Defendant applied to PTI, and, on March 23, 2016, the Program Director recommended his admission. The prosecutor, however, rejected defendant's application. In his memorandum to the judge, the prosecutor noted several "positive factors" that weighed in defendant's favor, specifically: he had no prior convictions; the crime was not assaultive or violent; defendant paid most of the stolen money back to the RVFC and he had no substance dependency; defendant was gainfully employed; and he cooperated with police by giving a statement admitting his guilt. See N.J.S.A. 2C:43-12(e); Pressler & Verniero, Current N.J. Court Rules, Guideline 3 to R. 3:28 (2017) (setting forth factors to be considered in evaluating application).
However, in assessing the "nature of the offense/facts of the case," the prosecutor noted defendant's duties as vice-president of the RVFC included management of the "ways and means" account, which was funded primarily through rent paid for the use of a hall at the firehouse by private caterers. The account was used to pay for some of the RVFC's bills, such as the cable television bill, and to pay firefighters who worked these private events at the firehouse. Over the course of more than one year, defendant wrote at least fifty checks totaling more than $16,000 to himself and forged the names of the fire company president and treasurer. When the monies were discovered missing, defendant admitted his theft to police and repaid $11,200 to the RVFC.
The prosecutor concluded that defendant's offense was both part of a continuing criminal business or enterprise, as well as a breach of the public trust. See Guideline 3(i), supra. He noted that defendant failed to present any "compelling reasons" to overcome the presumption against admission for such crimes. Ibid. The prosecutor considered several other factors, finding the offense involved and touched upon defendant's public office, N.J.S.A. 2C:43-12(b)(2)(a), thereby making him presumptively ineligible for admission into PTI. He further acknowledged the township fire commissioner did not wish to forego prosecution and objected to defendant's admission. See N.J.S.A. 2C:43-12(e)(4). Furthermore, the prosecutor determined the RVFC and society had a strong interest in prosecuting defendant because of his status as a public official, and the public need for prosecution outweighed the value of supervisory treatment. See N.J.S.A. 2C:43-12(e)(7) and (14).
Defendant appealed. Citing N.J.S.A. 2C:43-12(e)(3), (5) and (6), he argued the prosecutor "failed to consider, analyze, or give appropriate weight to the numerous statutory factors that weigh[ed] in favor" of his admission, including his age and the likelihood that PTI would address the "root causes" of defendant's aberrational criminal behavior. Defendant also referenced other statutory factors, uncited by the prosecutor, that were inapplicable to his circumstances. Finally, defendant argued the prosecutor accorded too much consideration to the factors that presumptively weighed against admission.
The hearing on defendant's appeal took place before a different judge, who rendered his oral decision after considering the arguments of counsel. The judge found the RVFC was "clearly . . . taxpayer-funded, to an extent, but . . . also raise[d] its own money as a volunteer status." The judge further found the checking account defendant used contained monies acquired through the rental of a "public hall." The judge rhetorically questioned whether the offense "touch[ed] upon [defendant's] employment as a firefighter or was this really more of the volunteer duties[.]" Citing his experience "in dealing with municipal laws . . . in [his] prior practice," the judge concluded the offense arose from defendant's status as a "volunteer" and did not involve "taxpayer funds." He noted defendant's age, and seemingly concluded "local government" would not allow someone that young to have supervisory responsibility over public monies. In short, the judge concluded the presumptions against admission for offenses that touched upon a public office or otherwise violated the public trust did not apply.
The judge then stated
once the presumption is removed[,] it's not that the State's reasoning was a gross and patent abuse [of discretion] in that they didn't consider any factors. I find that [it] actually did. But when you take the presumption out, I think the defendant is a good candidate for [PTI], so I am going to, at this point, grant the appeal and allow him into the . . . program.The prosecutor then asked whether the judge was also finding that the presumption against admission for an "ongoing criminal enterprise" did not apply. The judge questioned whether defendant's conduct — writing checks to himself — was an "enterprise." He reasoned defendant's restitution of nearly all the stolen money "militate[d] against using that as a sole reason to knock [defendant] out of [PTI]." He entered the order under review, and this appeal followed.
The State argues the presumptions against enrollment in PTI applied to the facts of this case, defendant failed to overcome those presumptions, and the judge "substituted his own judgment for that of the prosecutor." We agree and reverse.
"PTI is essentially an extension of the charging decision, therefore the decision to grant or deny PTI is a 'quintessentially prosecutorial function.'" State v. Roseman, 221 N.J. 611, 624 (2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)). "As a result, the prosecutor's decision to accept or reject a defendant's PTI application is entitled to a great deal of deference." Ibid. (citing State v. Leonardis, 73 N.J. 360, 381 (1977)). It follows, therefore, that "[t]he scope of judicial review of PTI decisions is 'severely limited[,]' and interference by reviewing courts is reserved for those cases where needed 'to check [] the most egregious examples of injustice and unfairness.'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (second and third alterations in original) (second internal quotations and citation omitted) (quoting State v. Negran, 178 N.J. 73, 82 (2003)).
"Trial courts may overrule a prosecutor's decision to accept or reject a PTI application only when the circumstances '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.'" Roseman, supra, 221 N.J. at 624-25 (second internal quotations and citation omitted) (quoting Wallace, supra, 146 N.J. at 582).
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 judgement. . . . 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.
[Roseman, supra, 221 N.J. at 625 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]
Although any defendant may apply to PTI, "both N.J.S.A. 2C:43-12(b) and Guideline 3(i) specify the offenses that carry statutory presumptions against admission . . . ." State v. Rizzitello, 447 N.J. Super. 301, 312 (App. Div. 2016) (citing Roseman, supra, 221 N.J. at 622). These presumptions "reflect an assumption that certain defendants 'have committed crimes that are, by their very nature, serious or heinous and with respect to which the benefits of diversion are presumptively unavailable.'" Roseman, supra, 221 N.J. at 622 (quoting State v. Watkins, 193 N.J. 507, 523 (2008)).
In this case, the prosecutor relied upon N.J.S.A. 2C:43-12(b)(2)(a), which provides: "There shall be a presumption against admission into a program of supervisory treatment for . . . a defendant who was a public officer or employee whose offense involved or touched upon his public office or employment." The State also relied on two presumptions contained in Guideline 3(i): "If the crime was . . . part of a continuing criminal business or enterprise; or . . . a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected." Guideline 3(i) supra, at (2) and (4). Whether the presumptions apply presents "a purely legal question[.]" Watkins, supra, 193 N.J. at 521.
What constitutes a "criminal business or enterprise" is less than crystal clear. In Bender, supra, 80 N.J. at 95, the Court held the defendant, who repeatedly stole cocaine from his employer for personal use over a four year period, had not engaged in a continuing criminal enterprise because his crimes lacked "commercial overtones" and did not enrich him "in some material way." In State v. Sutton, 80 N.J. 110, 118-19 (1979), decided the same day as Bender, the Court concluded the defendant was part of a continuing criminal enterprise by committing welfare fraud over the course of four and a half years and using the proceeds to feed herself and her family. In State v. Nwobu, 139 N.J. 236, 252 (1995), although "not critical" to its decision, the Court stated defendant's six-week, $75,000 check fraud did not involve the "more long-standing criminal involvement" anticipated by Guideline 3(i)(2).
Finally, in Watkins, supra, 193 N.J. at 515, the defendant cashed nine unemployment benefit checks over a period of four months, certifying he was unemployed while actually employed. In concluding Guideline 3(i)(2) did not apply, the Court stated:
"part of a continuing criminal business or enterprise" category, like the other prongs of Guideline 3(i), generally was intended by the drafters to encompass serious or heinous crimes that are elements of a larger commercial scheme perpetrated by persons acting in concert for material financial gain. So defined, an individual who, on his own, has simply committed a series of similar crimes is not "part of a continuing criminal business or enterprise" warranting presumptive exclusion from PTI.However, the court noted an exception for "the Sutton type case involving long-standing criminality . . . ." Id. at 526. The Guideline applies to such cases "perpetrated by a defendant, acting alone, that continue for such a lengthy period of time that they reflect a level of planning or deliberation . . . the drafters likely considered more serious than mere repetitive conduct and emblematic of a frame of mind not conducive to rehabilitation." Id. at n.3.
[Id. at 514.]
Here, defendant's criminal conduct lasted more than one year and involved more than fifty separate incidents. To accomplish his theft, defendant needed to forge the names of the RVFC's president or treasurer. Given the length of time and defendant's inability to consummate the crime without forging the names of others, we conclude the presumption in Guideline 3(i)(2) applies.
We also agree with the State that "defendant . . . was a public officer . . . whose offense involved or touched upon his public office," N.J.S.A. 2C:43-12(b)(2)(a), and involved "a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime." Guideline 3(i), supra, at (4). In State v. Quezada, 402 N.J. Super. 277, 284 (2008), we said "'[f]irefighting' is clearly a 'governmental function,' as part of government's primary role is to protect the health, welfare and safety of the public, even if performed or assisted by volunteers of the community - at least in some organized or official recognized form." We found that for purposes of the official misconduct statute, N.J.S.A. 2C:30-2(a), the defendant, a volunteer firefighter, could be considered a "public servant." Ibid.
Recently, the Court held that an EMT who worked for a non-profit rescue squad that received municipal funding was not a "public servant" and, therefore, could not be charged with official misconduct for embezzling funds belonging to the squad. State v. Morrison, ___ N.J. ___, ___ (2016) (slip op. at 28-29). The Court distinguished the defendant's position from that of the defendant in Quezada, citing with approval our recognition that firefighting was a public or governmental function. Id. at ___ (slip op. at 26-27). --------
Defendant was the vice-president of the RVFC, chairman of its Ways and Means Committee and an active-duty firefighter. He was, for purposes of N.J.S.A. 2C:43-12(b)(2)(a), a "public officer." Moreover, his offense "involved or touched upon his public office." Ibid.
By analogy, N.J.S.A. 2C:51-2(d) provides that "any person convicted of an offense involving or touching on his public office [or] position . . . shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions." (Emphasis added). "'[I]nvolving or touching on his public office, position or employment' means that the offense was related directly to the person's performance in, or circumstances flowing from, the specific public office[ or] position or employment held by the person." Ibid. (emphasis added); see State v. Hupka, 203 N.J. 222, 233-38 (2010) (explaining the legislative evolution of the statute and the meaning of its terms).
Here, defendant's embezzlement may not have been "related directly to [his] performance" as a volunteer firefighter. Compare, Quezada, supra, 402 N.J. Super. at 284 (finding the defendant's sounding of false fire alarms was "sufficiently related to [his] firefighting activities because it called the department into action"). However, it is unreasonable to argue that defendant's embezzlement did not "relate[] directly to . . . circumstances flowing from" his position as a volunteer firefighter and vice-president of the company in charge of the Ways and Means Committee's accounts.
We need not decide whether the presumption against PTI admission in Guideline 3(i)(4) — the offense was a "breach of the public trust" — defines conduct that is co-extensive with conduct defined by N.J.S.A. 2C:43-12(b)(2)(a). In this case, it suffices to say that even though the monies deposited in the Ways and Means Committee's checking account were not derived by action of the municipal governing body, because of the public function of RVFC's firefighting activities, any diversion of those funds for non-authorized uses breached the public trust.
Because the presumptions against admission applied, defendant bore the burden of demonstrating compelling reasons for his admission. Defendant had no prior convictions, was gainfully employed and had made restitution, albeit only after his embezzlement was discovered. However, as the Court has made clear, "overcoming these presumptions requires showing 'something extraordinary or unusual' about the defendant's background." Roseman, supra, 221 N.J. at 622-23 (quoting Nwobu, supra, 139 N.J. at 252-53). Defendant failed to do so in this case.
We conclude the prosecutor's rejection of defendant's application to PTI was not a patent and gross abuse of his broad discretion. We are, therefore, constrained to reverse the order under review.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION