STATE OF NEW JERSEY v. DOROTHY HAYES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3680-04T43680-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOROTHY HAYES,

Defendant-Appellant.

 

Submitted September 20, 2006 - Decided October 13, 2006

Before Judges Parrillo and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-0742.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief; Amy F. Newcombe, on the brief).

PER CURIAM

Defendant Dorothy Hayes appeals from the October 22, 2004 order of the Law Division denying her motion to be admitted into the Pretrial Intervention (PTI) program over the objection of the PTI Director and the County Prosecutor. We affirm.

The facts relevant to the issues on appeal are as follows. Defendant was indicted for third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a, based on a series of transactions in which charitable funds to which she was not entitled were paid to defendant or to others for her benefit. Specifically, defendant told her friend, Amantullah Anthony, who was an administrative assistant for the New Jersey Interfaith Partnership of Disaster Recovery, that she was behind in her bills. Although she knew that the charity had been created to help September 11 victims and that she had no needs connected with that tragedy, she accepted a $2,100 check from the charity through Anthony's assistance. A few days later, she agreed to cash a second check drawn on the charity's account and to return those funds to Anthony. Following those transactions, defendant used the account numbers she found on the charity's checks to transfer money from the charity to make payments on her credit cards and her car loan. During this time, defendant was also aware that at least five other people had received money from the charity through Anthony although none of them qualified for September 11 assistance.

Following her arrest and indictment, defendant applied for admission into the PTI program. In rejecting defendant's application, the PTI Director referred to two of the Guidelines for Operation of the program as adopted by the Supreme Court. Specifically, the PTI Director noted that PTI was inappropriate because defendant had not "demonstrated sufficient effort to effect necessary behavioral change," and because defendant's offenses were part of a continuing criminal enterprise. See Guidelines For Operation of Pretrial Intervention in New Jersey, Pressler, Current N.J. Court Rules, appendix to R. 3:28 (Guidelines 2, 3(i)(2)). In particular, the PTI Director referred to the seriousness of the knowing diversion of funds from legitimate September 11 victims and defendant's subsequent arrest for a similar offense in Essex County. The County Prosecutor concurred with the PTI Director's recommendation.

Defendant appealed the decision denying her PTI application to the Law Division, where the judge declined to admit her to PTI over the Prosecutor's objection for reasons he expressed on the record on October 22, 2004. Thereafter, defendant agreed to plead guilty, reserving her right to appeal the denial of admission to PTI, and the State agreed to recommend that defendant be sentenced to a probationary term conditioned on payment of restitution. On February 4, 2005, defendant was sentenced to five years' probation and was ordered to pay restitution, together with appropriate fees and penalties.

On appeal, defendant raises the following point for our consideration:

POINT I

THE PROGRAM DIRECTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO PTI IS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION WHICH MUST BE CORRECTED BY THIS COURT.

We have considered this argument in light of the record and the applicable legal precedents and have found it to be unpersuasive.

Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliquiri, 158 N.J. 28, 35 (1999). Admission to PTI is governed, in general, by both statute, N.J.S.A. 2C:43-12a(1), and court rule. R. 3:28; see Guidelines, supra. The scope of judicial review of a decision to reject a PTI application is "severely limited," State v. Nwobu, 139 N.J. 236, 246 (1995)(quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), and interference in that decision by the courts is reserved for those cases in which it is needed "to check . . . 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 standard to be applied by the courts in reviewing PTI decisions has been referred to as "enhanced" or "extra" deference. State v. Baynes, 148 N.J. 434, 443-44 (1997)(quoting Kraft, supra, 265 N.J. Super. at 111). Moreover, the burden on any defendant who seeks to overturn the denial of a PTI application is particularly weighty. As our Supreme Court has held, a defendant seeking to overcome rejection from PTI must prove by clear and convincing evidence that the decision to reject his or her application was a "patent and gross abuse of

. . . discretion." Negran, supra, 178 N.J. at 82 (citing Nwobu, supra, 139 N.J. at 246); see State v. Brooks, 175 N.J. 215, 225 (2002).

In applying this test, the Supreme Court has noted that if a rejected defendant can prove that the decision "(a) was not premised upon a consideration of all relevant factors, (b) was based upon consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment," then an abuse of discretion would "[o]rdinarily . . . be manifest." State v. Bender, 80 N.J. 84, 93 (1979). However, in order to raise that presumption to the level of "a patent and gross" abuse of discretion, the defendant must also prove that his or her rejection from PTI will "clearly subvert the goals" of the PTI program. Ibid. Similarly, our Supreme Court has held that it is appropriate to reverse a decision respecting PTI that is "contrary to the predominant views of others responsible for the administration of criminal justice" such that it is "clearly unreasonable so as to shock the judicial conscience" or that it "could not have been reasonably made upon a weighing of the relevant factors." Nwobu, supra, 139 N.J. at 253-54.

Defendant's arguments are insufficient to meet these standards. In particular, she asserts that the PTI Director's reliance on Guideline 3(i), that her offense was part of a continuing criminal business or enterprise, was inappropriate. In support of this argument, she contends that her thefts of the funds from the charity were excusable because she was a single mother of six children, "gripped" by the "cycle of poverty" and that her "conduct constituted a continuing attempt to survive" and a "desire to better herself." Furthermore, she argues that admitting her to PTI would fulfill all of the purposes of the program, by providing her with rehabilitation, by serving as a deterrent to future conduct, by recognizing that hers was a "victimless offense," and by conserving judicial resources for more serious matters.

The record, however, does not support defendant's view of the offense or of the propriety of her exclusion from the PTI program. She not only accepted funds from a charity devoted to purposes for which she knew she did not qualify, but she thereafter took additional funds by making unauthorized transfers from the charity's bank accounts to pay her credit card bills and her car loan. She not only did so for her own personal gain, but to the detriment of the people for whose benefit the funds had been collected. Moreover, in addition to the funds that she took for herself, defendant assisted her friend Anthony by cashing a check and turning that sum over to Anthony and she was aware of others who were involved in the continuing thefts from the charity. The circumstances of her life and her personal situation, which were considered by the PTI director and the Prosecutor in reaching the decision to reject her, do not outweigh these significant factors.

Nor do we agree with defendant's argument that her status as a single mother who was willing to make restitution entitled her to PTI in accordance with our decision in State v. Mickens, 236 N.J. Super. 272 (App. Div. 1989). Unlike the defendant in Mickens, see id. at 275, defendant here denied the extent of her thefts when first questioned because she believed that the authorities would not discover the truth, brought a token amount of money toward the amount she knew she would owe in restitution to the hearing on her PTI motion and demonstrated no effort to change her behavior in the future, instead engaging in a similar offense in Essex County.

The motion judge carefully analyzed and considered each of defendant's arguments in denying her motion to overturn her rejection from the PTI program. In particular, the judge's conclusion that Mickens was inapplicable is entirely sound. We discern no error in the motion judge's conclusions and detect no "patent and gross abuse of discretion" in the decision of the PTI Director and the Prosecutor to reject defendant from the PTI program.

Affirmed.

 

(continued)

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A-3680-04T4

 

October 13, 2006