STATE OF NEW JERSEY v. GABRIELLE NICOLE FRAZIER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3010-07T43010-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GABRIELLE NICOLE FRAZIER,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 23, 2009 - Decided

Before Judges Axelrad and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-03-0172.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gabrielle Nicole Frazier was indicted for theft, N.J.S.A. 2C:20-3. Her application for admission into the Somerset County Pretrial Intervention (PTI) Program was rejected by the PTI Director, a decision with which the prosecutor agreed. She appeals from the trial court's denial of her appeal from that decision. We affirm.

Defendant was employed as a cashier at Sears. Her employer launched an internal investigation of her in December 2006 after her register receipts were short on more than one occasion. The loss prevention manager reviewed the in-house surveillance system for the dates that defendant's receipts were short and observed her taking money from the register and placing it in her pocket. The investigation revealed that defendant stole a total of $2400 from registers as follows:

December 1, 2006: $451 men's department

$332 men's department (separate register)

December 15, 2006: $434 men's department

December 20, 2006 $588 men's department

$595 children's department

When confronted with the evidence against her and after being advised of her rights, defendant admitted taking money from the register and apologized.

Defendant applied for admission into the PTI program. She was twenty years old. She had no prior criminal record as an adult but had been charged with shoplifting as a juvenile. The shoplifting charge was dismissed after she fulfilled obligations imposed pursuant to a Juvenile Conference Committee disposition. Defendant also had "a PTI-type disposition" in 2005 in Maryland for charges arising from an arrest for assault, malicious destruction of property, riot, disorderly conduct, disturbing the peace and stalking.

On May 17, 2007, defendant's application was rejected by the PTI director. The form reflected the following reason for the rejection:

The crime or crimes defendant is charged with constitute part of a continuing pattern of antisocial behavior or the defendant has a record of criminal and penal violations and presents a substantial danger to others. N.J.S.A. 2C:43-12e(8); N.J.S.A. 2C:43-12e(9).

The Prosecutor agreed that rejection was appropriate for the stated reason. Following oral argument, the trial court denied defendant's appeal from that decision. Defendant pled guilty pursuant to a plea agreement and was sentenced to two years probation with conditions that she make restitution and perform fifty hours of community service.

Defendant raises the following point on appeal:

POINT I

BECAUSE THE PROSECUTOR'S OFFICE DENIED ADMISSION INTO THE PTI PROGRAM FOR NO REASON OTHER THAN ENSURING THAT THE DEFENDANT HAD A CRIMINAL RECORD, THE DECISION TO DENY PTI WAS A PATENT AND GROSS ABUSE OF DISCRETION AND THE ORDER DENYING ADMISSION TO THE PROGRAM SHOULD BE REVERSED.

Our review of decisions to reject applications for PTI is "severely limited," State v. Nwobu, 139 N.J. 236, 246 (1995), serving 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)). To set aside a prosecutor's rejection, a defendant must clearly and convincingly establish that the prosecutor's decision constituted "a patent and gross abuse of his discretion." State v. Watkins, 193 N.J. 507, 520 (2009); State v. Dalglish, 86 N.J. 503, 509 (1981). A party must show that the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a "clear error in judgment." Nwobu, supra, 139 N.J. at 247; State v. Bender, 80 N.J. 84, 93 (1979). A rejected applicant may also satisfy this heavy burden by showing that the prosecutor's error "will clearly subvert the goals underlying Pretrial Intervention." Bender, supra, 80 N.J. at 93.

In arguing that such an abuse of discretion occurred here, defendant challenges the prosecutor's conclusion that she was involved in "ongoing criminal activity." The statement of reasons here is a pre-printed form. The reason provided for defendant's rejection incorporates by reference two of the criteria set forth in N.J.S.A. 2C:43-12(e):

(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

 
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;

The admitted criminal conduct that formed the basis for the theft charge here consisted of five separate thefts occurring on three separate days. Even if the prosecutor's consideration of defendant's criminal activity were limited to this offense, these facts support the prosecutor's decision that defendant engaged in "a continuing pattern of anti-social behavior."

Defendant also argues that the prosecutor's decision was a clear error in judgment that subverts the goals underlying PTI because the conviction was ineffective, counterproductive, and unnecessary. She argues that the rehabilitation offered by her probationary sentence could have been provided in PTI without unnecessarily "complic[ating] Ms. Frazier's life by cutting off avenues of employment." This argument ignores the fundamental principle that the decision whether to divert a defendant from the criminal process lies within the discretion of the prosecutor. Nwobu, supra, 139 N.J. at 246. Indeed, "it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993).

In sum, the decision to reject defendant's PTI application was not a patent and gross abuse of discretion.

Affirmed.

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A-3010-07T4

October 1, 2009