Opinion
DOCKET NO. A-1956-13T2
06-23-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. C.H., Defendant-Respondent.
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 13-02-332.
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
The State appeals from an order that admitted defendant into the pretrial intervention program (PTI) over its objection. We reverse.
Defendant was employed in a civil service position as a golf ranger by the Monmouth County Parks Department (Parks Department). Following an investigation into suspicious cash refunds that went through defendant's register, golf course administrators identified forty suspect transactions between the dates of September 5 and December 23, 2012, totaling $3460.64. After her arrest in January 2013, defendant admitted stealing cash from the golf course since 2012. She pled guilty to third-degree theft, N.J.S.A. 2C:20-3(a) and, in providing a factual basis, testified that she stole approximately $3400 from the Parks Department during a six-month period in 2012. As part of her plea agreement, defendant entered into a consent order in which she forfeited her public office and was disqualified from holding public office in the future.
Approximately two weeks after pleading guilty, defendant applied for admission to PTI. Her application was recommended by the Director of the PTI program. However, the Prosecutor rejected her application and set forth his reasons in a PTI rejection memorandum dated May 1, 2013, which states, in pertinent part:
The defendant is a 34 year old single female. She has never been married and does not have any children. The defendant is a 1997 graduate of Marlboro High School. She also attended Brookdale Community College but did not graduate. She has been a
resident of the State of New Jersey her entire life. She denies any past or present problems with drugs or alcohol. She reports that she is in good physical and mental health. The defendant has no prior criminal history. She was employed by the Monmouth County Parks System from 2001 until 2013. The defendant has expressed remorse for her crimes.
The defendant pleaded guilty to Theft, a third degree crime. At all times that this offense was committed the defendant was employed by the Monmouth County Parks System through Civil Service designation as a Park Ranger. She was assigned to work at the Charleston Springs Golf Course in Millstone, NJ as a golf ranger. In this capacity, she manned the cash register and collected greens fees from golfers. It was this position that she used to commit her crime. On dozens of occasions from August 2012 through January 2012, when the defendant would receive cash payment for greens fees from a golfer, she would enter the transaction into the cash register or the point of sale terminal ("POS"). Later, when alone, the defendant would manipulate the POS system so that it appeared that the golfer received a refund for their round of golf, when in fact they had not. She would remove the cash from the POS and place it in her pocket. The total amount stolen in this manner was $3,460.
When formulating a decision on the defendant's PTI application it is incumbent upon the Prosecutor to consider the criteria set forth in N.J.S.A. 2C:43-12(a) through (e), together with the complimentary guidelines found in R. 3:28.
Based on a review of this case the State rejects the defendant's PTI application. The reasons for denial are as follows:
1.) The motivation and age of the defendant (N.J.S.A. 2C:43-12(e)(3)); the nature of the offense and the facts of the case (N.J.S.A. 2C:43-12(e)(1)-(2)); and the extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior (N.J.S.A. 2C:43-12(e)(8)[.] At the time of this offense the defendant was a mature adult who worked for the victim for over ten years. At this point in her life and career, she should have formed the ability to know that this type of criminal activity is unacceptable. Instead, she used her position of trust to commit a theft against her employer, and ultimately the taxpayers of this county. Because this crime was committed on dozens of separate occasions over the course of several months it demonstrates that the defendant held her employer/victim in little regard. This was not a momentary lapse in judgment, but a continuing course of conduct that required the defendant to choose to commit a crime on multiple occasions over an extended period of time.
2.) The needs and interest of society (N.J.S.A. 2C:43-12(e)(7)); the crime committed is of such a nature that the public need for prosecution outweighs the value of PTI for this defendant (N.J.S.A. 2C:43-12(e)(14)); and whether or not the harm done to society by abandoning criminal prosecution outweigh the benefits to society from channeling an offender into a supervisory treatment program (N.J.S.A. 2C:43-12(e)(17)). This case involves a defendant who, as a public employee, was entrusted to handle greens fees for the county parks system. She used that position of trust and confidence to steal. Additionally, there exists a strong public policy in this state to hold public officials or employees accountable for their crimes. To grant her admission into the program would send the message that public
employees are not being held accountable for the crimes they commit against the public that they serve. N.J.S.A. 2C:43-1[2](b) provides in relevant part that, "[t]here 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 [her] public office or employment." Nothing in the defendant's application rebuts or overcomes this presumption.
The State has considered the positive factors in the defendant's application. The State finds the negative factors significantly outweigh the positive, making the defendant an inappropriate candidate for PTI. Accordingly, the Monmouth County Prosecutor's Office will reject the defendant's application to the Pretrial Intervention Program.
Defendant filed a motion to appeal her rejection from the PTI program, asking the court to allow her to be accepted into the program over the Prosecutor's objection. The Prosecutor opposed the motion. At the request of the trial judge, the Prosecutor supplemented its PTI rejection memorandum, reviewed each of the criteria set forth in N.J.S.A. 2C:43-12(e)(1)-(17) as each applied to the facts of defendant's PTI application, and stated its finding that defendant was "an inappropriate candidate for PTI."
At oral argument on defendant's motion, the court framed the issue as whether the presumption against PTI admission "for a defendant who was a public officer or employee whose offense involved or touched upon his public office or employment," N.J.S.A. 2C:43-12(b), could be overcome. The court recognized that a defendant may rebut this presumption by presenting "compelling reasons" for his or her admission into PTI, see State v. Nwobu, 139 N.J. 236, 247-48 (1995) (quoting R. 3:28, Guideline 2), which, the court stated, required "a showing greater than that the accused is a first time offender and has admitted or accepted responsibility for the crime."
The court found that such a showing had been made because: defendant acknowledged her error, had shown remorse, was willing to pay restitution, had forfeited public office, and would have more limited employment options with a conviction. The court concluded, "[t]he stigma of the present indictment or accusation, coupled with the defendant's permanent forfeiture of her job, as well as any other public positions, is . . . a sufficient deterrence from her committing similar offenses in the future." The court also found that the Prosecutor had placed undue emphasis upon the fact that defendant was a public employee, stating, "the defendant was not appointed to serve, she was not an elected official, she was a golf ranger who worked on a public golf course. The defendant was no different from an employee working at a privately-owned golf course, but for the fact that she was a civil servant working at a public golf course." (Emphasis added). The court concluded that the Prosecutor's decision to reject defendant constituted a patent and gross abuse of discretion and granted defendant's motion.
In its appeal, the State argues that this order should be reversed because its decision was not a "patent and gross abuse of discretion." We agree.
A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors raises a question of law, Nwobu, supra, 139 N.J. at 247, which we review de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
As the trial court recognized, the decision whether to accept or reject a defendant's PTI application is essentially a prosecutorial function. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial," State v Negran, 178 N.J. 73, 82 (2003); Nwobu, supra, 139 N.J. at 246. We afford the prosecutor's decision an enhanced level of deference, State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993), and it is expected that a prosecutor's decision to reject a PTI applicant "will rarely be overturned." State v. Wallace, 146 N.J. 576, 585 (1996) (quoting Leonardis II, supra, 73 N.J. at 380).
"A prosecutor's discretion in respect of a PTI application is not without its limits[.]" Negran, supra, 178 N.J. at 82; State v. Brooks, 175 N.J. 215, 225 (2002). The prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines. Negran, supra, 178 N.J. at 80-81 (citations omitted). As part of a determination that is "primarily individualistic in nature," id. at 80, the prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation, and "assess a defendant's 'amenability to correction' and potential 'responsiveness to rehabilitation.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting N.J.S.A. 2C:43-12(b)); see also State v. Mosner, 407 N.J. Super. 40, 55-56 (App. Div. 2009). A prosecutor is also "required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J. at 584; see Nwobu, supra, 139 N.J. at 249 ("The statement of reasons may not simply 'parrot' the language of relevant statutes, rules, and guidelines.").
The scope of judicial review of a prosecutor's decision to reject a defendant's application is severely limited. Nwobu, supra, 139 N.J. at 246. To reverse, "[t]he court must find that the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of discretion.'" State v. Caliguiri, 158 N.J. 28, 37 (1999) (quoting Wallace, supra, 146 N.J. at 584); see also Negran, supra, 178 N.J. at 82; Brooks, supra, 175 N.J. at 225; Nwobu, supra, 139 N.J. at 246. To warrant judicial intervention, the prosecutor's consideration must amount to a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention." Flagg v. Essex County Prosecutor, 171 N.J. 561, 572 (2002); see Caliguiri, supra, 158 N.J. at 37; State v. Bender, 80 N.J. 84, 93 (1979).
The Prosecutor's PTI rejection memorandum and supplemental memorandum evaluated the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines as required. The memoranda also reflect an assessment that is individualized to the facts of this defendant and this offense as opposed to a boilerplate recitation of statutes and guidelines.
As the trial court also recognized, N.J.S.A. 2C:43-12(b) applied to the facts of this case, creating a presumption against admission that could only be overcome by "compelling reasons." In Nwobu, supra, 139 N.J. at 252-53, the Supreme Court discussed what constitutes "compelling reasons":
[T]here must be a showing greater than that the accused is a first-time offender and has admitted or accepted responsibility for the crime. To forestall imprisonment a defendant must demonstrate something extraordinary or unusual, something "idiosyncratic," in his or her background.
[Id. at 252.]
Although "the weight of the evidence to rebut the presumption against PTI [when a defendant has been charged with a third-degree offense] need not be as great as if the defendant had been charged with a second-degree offense," Caliguiri, supra, 158 N.J. at 44, we note that the presumption against admission here rests upon the fact that the offense was committed by a public employee who abused the public trust. As the Prosecutor observed, defendant was entrusted to handle greens fees for the county park system, a position of trust and confidence that she used to steal from the public.
The fact that defendant may have been admitted to PTI if she had committed the same offense in private employment does not render the Prosecutor's decision a patent and gross abuse of discretion or qualify as a compelling reason for her admission. Public employment is a privilege and, in establishing a presumption against admission for a public employee "whose offense involved or touched upon [her] public office or employment," N.J.S.A. 2C:43-12(b), the Legislature clearly expressed its intent that cases involving public employees are subject to a different standard for admission into PTI.
Although defendant's status as a public employee does not necessarily preclude her admission into PTI, it is one factor to be considered in judging her as a whole person. DeMarco, supra, 107 N.J. at 569. In DeMarco, the Supreme Court affirmed our decision to reverse a trial court order compelling the PTI admission of a police officer accused of an unprovoked attack on a member of the public with a nightstick. The Court stated the following about the prosecutor's consideration of the defendant's status as a police officer:
Defendant's employment as a police officer is particularly relevant because the offense involves the misuse of authority and the commission of violence against a member of the public. The prosecutor's reliance on defendant's employment as a police officer does not subvert the goals underlying PTI and does not constitute a "patent and gross" abuse of discretion. Likewise, the prosecutor is justified in viewing defendant's conduct as a breach of the public trust. A police officer is under a duty to uphold the law and maintain public safety. An unprovoked attack with a
nightstick on a member of the public may properly be viewed as a breach of that duty.
[Id. at 569.]
Here, too, the Prosecutor's reliance upon defendant's public employment does not subvert the goals underlying PTI. The PTI rejection memorandum reflects the Prosecutor's consideration of this as one, albeit important, factor that was considered in judging defendant as a whole person. The decision to reject her application was not based solely on her status as a public employee. The fact that she committed the theft dozens of times over a six-month period weighed in favor of rejection as well. Defendant has presented nothing idiosyncratic about her situation that could constitute "compelling reasons" to overcome the presumption against her admission. We are satisfied that the decision to reject defendant's PTI application was not a "patent and gross" abuse of discretion.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION