STATE OF NEW JERSEY v. SEGISMUNDO DUMLAO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2522-5T12522-5T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

SEGISMUNDO DUMLAO,

Defendant-Appellant.

__________________________________________________________

 

Submitted: October 18, 2006- Decided December 11, 2006

Before Judges Stern and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No. 05-05-00071-S.

Clifford E. Lazzaro & Associates, attorneys for appellant (Heather A. Fierro, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the State Grand Jury indicted him for violations of N.J.S.A. 2C:21-1a(3), forgery in the third degree, and N.J.S.A. 2C:28-7a(1) and (2), tampering with public records in the third degree, defendant, Segismundo Dumlao, applied for admission to the Pre-trial Intervention Program (PTI). See N.J.S.A. 2C:43-12 to -22. Although the program director recommended his admission, the deputy attorney general prosecuting the indictment denied defendant's application.

Defendant's motion appealing the prosecutor's decision was denied by the motion judge in an oral opinion. Thereafter, defendant pled guilty to tampering with public records. At sentencing, the forgery charge was dismissed and the court imposed a one year probationary sentence and the appropriate mandatory fines and penalties. Defendant now appeals the denial of his admission into PTI.

Prosecutors are permitted wide discretion in "deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Nwobu, 139 N.J. 236, 246 (1995). "Because of the recognized role of the prosecutor, we have granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI." State V. DeMarco, 107 N.J. 562, 566 (1987). As a result, the scope of our review is "severely limited" and serves to check only the "most egregious examples of injustice and unfairness." State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

"The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI." State v. Kraft, 265 N.J.Super. 106, 112 (App. Div. 1993). In order for a defendant to overturn the prosecutor's denial of his admission, he must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion." Ibid. (citations omitted). An abuse of discretion rises to the level of "patent and gross" when it clearly subverts the goals underlying the program. State v. Bender, 80 N.J. 84, 93 (1979). We apply these standards to the facts presented.

In 2001, defendant entered this country from the Philippines on a tourist visa. When his visa expired several months later, he illegally remained in New Jersey. In an attempt to obtain a New Jersey driver's license, defendant purchased a fraudulent Filipino passport for $1200 from an individual known as "Rex." Defendant first attempted to obtain a license at the Jersey City offices of the Motor Vehicle Commission (MVC), but decided against it after observing MVC employees scrutinizing other applicants' documentation.

With the expiration of his fraudulent passport, defendant again contacted Rex and obtained another fraudulent document. He was successful in obtaining a license at the Toms River MVC in January of 2002 and subsequently registered and insured two vehicles that he and his wife drove. A year later, realizing his New Jersey license was about to expire, defendant applied for and received a Massachusetts driver's license, surrendering his New Jersey license in the process. Ultimately, the New Jersey State Police conducted an investigation of Rex's activities; this led them to defendant who was arrested and charged.

In rejecting any applicant for admission to PTI, the prosecutor must provide,

[A] clear statement of reasons for the denial. N.J.S.A. 2C:43-12f; Guideline 8. That writing requirement is intended to facilitate judicial review, assist in evaluating the success of the PTI program, afford to defendants an opportunity to respond, and dispel suspicions of arbitrariness. The requirement also enables a defendant to challenge erroneous or unfounded justifications for denial of admission.

[Negran, supra, 178 N.J. at 82 (internal citations omitted).]

Here, the prosecutor provided a clear statement of her reasons for the rejection of defendant's application.

Although defendant was thirty-eight years old and had no prior record, he was in this country illegally and had been in that status for a number of years prior to his arrest. The prosecutor had a basis for concluding that during that time, defendant had obtained forged identification documents on two separate occasions and had used them to obtain a legitimate driver's license. The prosecutor noted that defendant's crime was not a victimless one because the "government is a victim when official government records are tampered with . . . ." Noting that "in today's climate where terrorism is a heightened concern and document fraud is used to facilitate it," she continued that the "nature of this type of offense" precluded diversion and "[t]here was a strong need to deter this behavior through prosecution." She added that defendant's status as an illegal alien made his effective supervision within the community unlikely. Lastly, she noted that defendant had participated in "continuing criminal conduct" that demonstrated a pattern of antisocial behavior. These reasons were essentially adopted by the motion judge in affirming the rejection of defendant from the program.

After careful consideration of the record and the appropriate legal standards, we affirm the prosecutor's rejection of plaintiff's application. The prosecutor's decision was based upon her review of defendant's individual characteristics. See Nwobu, supra, 139 N.J. at 255. The reasons set forth in her rejection letter amply support the conclusion that defendant's continued illegal status in this country, as well as his repeated attempts to utilize forged documents to further his continued noncompliance with the law, demonstrated a pattern of anti-social behavior. See N.J.S.A. 2C:43-12e(8). In light of heightened concerns regarding fraudulent documents and the nation's security, the conclusion that the nature of this offense and the public need for prosecution outweighed the value of supervisory treatment was reasonable. See N.J.S.A. 2C:43-12e(1),(14). Pursuant to the heightened standard of review that governs our consideration, defendant has failed to demonstrate by clear and convincing evidence that the prosecutor's rejection of his application to the PTI program was a patent and gross abuse of discretion.

Affirmed.

 

Venue was laid in Ocean County and defendant applied to the program through the criminal court intake unit in that county.

(continued)

(continued)

6

A-2522-5T1

December 11, 2006