STATE OF NEW JERSEY v. SUSAN K. WHALEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4952-04T44952-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SUSAN K. WHALEY,

Defendant-Appellant.

 

Submitted May 24, 2006 - Decided June 12, 2006

Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 04-05-0704-I.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted by a Middlesex County Grand Jury charged with third-degree theft, N.J.S.A. 2C:20-3 (count one), and fifty-nine counts of fraudulent use of credit cards, N.J.S.A. 2C:21-6h (counts two through sixty). Following the rejection of her pretrial intervention (PTI) application, she pleaded guilty to counts one through ten of the indictment and the State agreed to dismiss the remaining charges. The court accepted the plea agreement and imposed a five-year term of probation, appropriate fines and penalties, and $10,925 in restitution, payable at $150 per month. On appeal, the sole issue is whether defendant was properly denied entry into the PTI program. We affirm.

Defendant is a twenty-two-year-old first offender. At the time of the occurrences, she was a desk clerk at the Sheraton Hotel in Woodbridge. The hotel had a large clientele from British Airways who stayed there regularly. The British Airways employees were provided with cash from the airline through the hotel by a Diner's Club scanning device. The employees provided the desk clerk with an identification card to scan and provide them with cash. At some point it was discovered that defendant was listing withdrawals twice; between October 2003 and February 2004, she fraudulently completed fifty-nine of these transactions, totaling approximately $10,925.

Defendant applied for PTI. The Director of the Middlesex Vicinage PTI Program recommended against her admission into the program. The report denying admission said:

Although the victim may or may not be opposed to the [defendant's] eventual enrollment in diversion in this case, Ms. Whaley's conduct in these matters [does] not appear accidental, nor do[es it] represent isolated incidents of aberrational behavior, given the presence of numerous offenses committed over a four month period of time.

Rather, the [defendant's] participation in this matter appears to have been a deliberate attempt[] to deprive an employer of monies for one's own, financial gain. In those attempts, Ms. Whaley breached the confidentiality and trust given her by a corporate employer to defraud that employer of monies which were eventually used by the [defendant] for her own satisfaction.

The prosecutor also declined to permit defendant admission into the PTI program. The prosecutor's reasons were:

1) The nature of the offense and the facts of the case: This case involves a 60-count indictment wherein the defendant repeatedly engaged in credit card frauds and thefts against the company of British Airways and British Airways employees over the course of several months. The amount taken exceeded $10,000.00.

2) The motivation of the defendant: The defendant was employed by the Sheraton Hotel in June of 2003 and within six months the thefts and frauds had begun. Further, the criminal activity continued for five months until she was caught. The defendant provided police with a taped statement during which she admitted to the thefts and frauds and told police that the money was taken for clothes, gas and "going out to eat."

3) The needs and interests of the victim and society: These thefts and frauds were committed against British Airways and its individual employees. The defendant was placed in a position of trust by her employer by having the authority to use the cards. The defendant misused her position for her own gain. The needs and interests of the victims and society would best be served by processing this case through the traditional criminal justice system.

4) The extent to which the applicant's crime constitutes part of a continuing pattern of antisocial behavior: As is evidenced by the indictment, the defendant repeatedly committed these thefts and frauds against British Airways, its employees, and her own employer, the Sheraton, by misusing her position. The repetitive criminal conduct suggests a continuing pattern of antisocial behavior. In addition, the defendant has had prior contact with the law when she was arrested for Possession of CDS. The prior arrest is of importance because its combination with the instant offense suggests a continuing pattern of antisocial and criminal behavior.1

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See State v. Brooks, 175 N.J. 215, 227 (2002) (a prosecutor may consider disorderly persons offenses as a reference for anti-social behavior).

While the trial judge indicated that if he were the prosecutor he would have given defendant a second chance, he found the prosecutor's decision was not arbitrary and sustained it. We agree that the prosecutor's decision to deny defendant admission into the PTI program was not a patent and gross abuse of discretion.

PTI is a diversionary program that allows certain offenders to avoid criminal prosecution by receiving early rehabilitative services. State v. Nwobu, 139 N.J. 236, 240-41 (1995). New Jersey's PTI program is governed by both statute and court rule. See N.J.S.A. 2C:43-12; R. 3:28. Not every defendant is entitled to enter the PTI program. See Pressler, Current N.J. Court Rules, guideline 2 on R. 3:28 (2006). If a prosecutor rejects a defendant's application for PTI, the court will give that decision great deference. Brooks, supra, 175 N.J. at 225. To overcome a prosecutor's objection, a defendant must clearly and convincingly demonstrate that the prosecutor's decision constituted a patent and gross abuse of discretion. State v. Negran, 178 N.J. 73, 82 (2003). A patent and gross abuse of discretion requires a decision "'so wide of the mark . . . that fundamental fairness and justice require judicial intervention.'" State v. Wallace, 146 N.J. 576, 582-83 (1996) (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)). "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." State v. Bender, 80 N.J. 84, 93 (1979). Defendant has not met that burden.

The prosecutor, in rejecting defendant from PTI, considered that this was a sixty-count indictment, the criminal conduct took place over the course of several months, and the amount of the theft exceeded $10,000. Within six months of defendant's employment at the Sheraton Hotel, she began her criminal course of conduct. It continued until she was caught. She told the police in a taped statement that she took the money for clothes, gas and "going out to eat." She violated a position of trust placed in her by her employer, who had given her the authority to use the credit cards. The prosecutor found that the needs and interest of the victims, as well as society as a whole, would best be served by processing the case through the traditional criminal justice system. The prosecutor found that defendant's repetitive conduct suggested "a continuing pattern of anti-social behavior." These are valid reasons and are not, by any stretch, arbitrary or capricious.

Defendant relies upon State v. Mickens, 236 N.J. Super. 272, 273 (App. Div. 1989), where we reversed the Law Division order that had affirmed the county prosecutor's rejection of the defendant's application for admission into PTI. There, the thirty-year-old defendant, a single parent of three children, ages ten, nine and seven, was indicted on two counts of theft by deception, arising out of receipt of public financial assistance while she was employed. Id. at 273. She had obtained a job as a secretary, earning between four to five dollars per hour, and failed to report that income to the welfare authorities because she needed the money to make ends meet and without it would have been unable to move her family from what she described as "undesirable housing conditions." Id. at 274. Under those circumstances, we found that the decision to preclude the defendant from entering into the PTI program was a patent and gross abuse of discretion. Id. at 273, 280.

Mickens is not analogous to the case here. There, the two acts of welfare fraud occurred in an effort by the defendant to support her young children. Here, defendant stole money fifty-nine times for personal gain.

Affirmed.

 

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A-4952-04T4

June 12, 2006