STATE OF NEW JERSEY v. ROBERT DEFILIPPO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6309-04T26309-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT DEFILIPPO,

Defendant-Appellant.

 

Argued May 3, 2006 - Decided May 22, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, 05-06-741-A.

John R. Klotz argued the cause for appellant.

Ralph E. Amirata, Assistant Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Prosecutor, attorney; Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Following the Law Division's rejection of his pretrial intervention (PTI) application, defendant pleaded guilty to accusation no. 05-06-741-A, which charged him with four counts of third-degree computer theft, N.J.S.A. 2C:20-25a. The court imposed three concurrent three-year probationary terms on the condition that defendant serve forty-five days in custody in the Morris County jail in the Sheriff's Labor Assistance Program. The judge stayed the sentence pending appeal.

The sole issue raised on appeal is whether defendant was improperly denied entry into the PTI program. We affirm.

The charges arose, in part, out of a dispute defendant had with his prior landlord, Karen Kiehn. At different times, each party had obtained a harassment conviction against the other in Municipal Court. In October 2004, Kiehn received an e-mail from JohnMillsesq@aol.com that contained an attachment. Because her attorney in her landlord-tenant litigation with defendant was John M. Mills, III, Esquire, she opened the attachment, but the file was blank. Mills told her he had not sent the email.

In addition to the e-mail problem experienced by Kiehn, defendant's son, a college student, subsequently noticed that someone had accessed his e-mail account and sent e-mails in his name, and defendant's daughter also discovered that false e-mails had been sent under her name.

Upon investigation, the prosecutor's office determined that defendant had installed a spyware program in Kiehn's computer, which permitted him to gain access to her passwords, credit card information, and e-mails. He obtained Kiehn's credit card number when she made an online purchase and wrote it down for future use. He had also installed the spyware programs on the computers of his son and daughter. He admitted to installing the spyware on Kiehn's computer to retaliate against her, and on his children's computers to "inquire about their well being." It was against this background that the prosecutor rejected defendant's application for PTI.

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. The court rule also contains the "Guidelines for Operation of Pretrial Intervention in New Jersey." 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. State v. Brooks, 175 N.J. 215, 225 (2002). 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 requires judicial intervention. State v. Wallace, 146 N.J. 576, 582-83 (1996).

Here, defendant is unable to demonstrate that the prosecutor committed a patent and gross abuse of discretion by rejecting his PTI application. The trial judge made the following findings:

I view these offenses as serious. . . . [T]here are multiple alleged victims . . . over a period of time.

The fact that this continues, or allegedly continued over a period of time is a patter of inappropriate social behavior. The Prosecutor argues that the public needs to prosecute these type of offenses, they're a burglary of some nature. That the use of Spyware or similar programs to gain vital information or to gain access of that vital information of alleged victims is something that can't be tolerated and must be prosecuted.

Well, if I apply the law as I have described it when I started out in this decision, I can't find that the defendant has clearly and convincingly met his burden or that the Prosecutor in any fashion has abused his prosecutorial discretion.

We agree and affirm for the reasons expressed by Judge Ahto in his well-reasoned oral decision. Defendant committed the third-degree crimes against three separate victims. He has failed to establish that the prosecutor's rejection of his PTI application was an abuse of discretion. Defendant's arguments to the contrary are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed. We vacate the stay of defendant's sentence and remand to the trial court to enter an appropriate order.

 

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A-6309-04T2

May 22, 2006