STATE OF NEW JERSEY v. MARILYN SOTO-GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5587-07T45587-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARILYN SOTO-GONZALEZ,

Defendant-Appellant.

____________________________

 

Submitted September 21, 2009 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-07-0521.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, 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

Following the rejection of her application to the pre-trial intervention program (PTI), defendant Marilyn Soto-Gonzalez pled guilty to third-degree theft by deception, N.J.S.A. 2C:20-4. She was sentenced on May 22, 2008 to three years probation, psychological evaluation and treatment, restitution of $30,000, and associated fines and fees. She now appeals from the trial court's order dated November 8, 2007 denying her appeal from rejection to the PTI program.

I

Defendant was indicted for theft by deception in connection with a scheme by which she set up phony pay-pal accounts on a computer at her work place, and, through those accounts, used her employer's funds to purchase goods on E-Bay. Using a false name, she also purchased furniture over the internet and did not pay for it. In two separate indictments, she was accused of the theft of $6500 worth of furniture from the internet seller, plus the theft of $57,000 from her employer.

Defendant, then age thirty-five, applied for PTI, based on her lack of any prior criminal record. The Criminal Division Manager initially approved the application. However, on July 20, 2007, the prosecutor rejected the application, concluding that defendant had committed numerous internet-related thefts while at work in her employer's finance department, and that her conduct constituted "a continuing pattern[] of anti-social behavior." N.J.S.A. 2C:43-12e(8). The victims were seeking prosecution and had not received full restitution. Based on defendant's lack of an explanation when she was caught, the prosecutor reasoned that the crimes appeared to be motivated by "greed" rather than by any condition that required treatment. The prosecutor concluded that the public benefit from deterrence outweighed "the defendant's personal desire for PTI." The Criminal Division Manager subsequently reconsidered his earlier decision and rejected plaintiff's application on September 11, 2007.

In a comprehensive oral opinion placed on the record on November 8, 2007, Judge Marino denied defendant's PTI appeal, concluding that the prosecutor's decision to reject defendant from PTI was not a patent and gross abuse of discretion:

The facts of this case are that the Defendant was a trusted employee who misused the financial information of her employer. The Defendant was given access to and did misuse the financial and bank account information belonging to [her employer] to commit the crimes over the Internet while at work . . . .

Under the circumstances of this case, the public benefits from general and specific deterrence outweigh the Defendant's personal desire for P.T.I.

Therefore, the County Prosecutor's rejection on that basis cannot be said to be a patent and gross abuse of discretion . . . .

At the oral argument of the PTI appeal, defendant's attorney represented to the court that defendant had suffered a stroke and was suffering from severe depression at the time she committed the crimes. Counsel also claimed that his client was duped into committing her crimes by someone she met over the internet. However, in her opinion, the judge noted that defendant had not presented the prosecutor with that information in her PTI application. The record presented to us on appeal likewise does not include any legally competent evidence to support those factual allegations.

II

Like the trial court, we must defer to the prosecutor's decision unless it represents a gross and patent abuse of discretion:

We defined the "patent and gross abuse of discretion" standard in State v. Bender, supra, 80 N.J. at 93. To meet that standard 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." Ibid. Additionally, an abuse of discretion is "patent and gross" if it is shown "that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Ibid. If a prosecutor fails to consider all relevant factors or considers irrelevant factors, a court may remand the matter for further consideration. State v. DeMarco, 107 N.J. 562, 567 (1987). If a prosecutor commits a clear error of judgment, a court may order that a defendant be enrolled in PTI. Ibid.

[State v. Nwobu, 139 N.J. 236, 247 (1995).]

On this appeal, defendant contends that the prosecutor's decision was a patent and gross abuse of discretion. Alternatively, she argues that the case should be remanded because the prosecutor failed to consider all of the evidence, or that cumulative errors warrant reversal.

Having thoroughly reviewed the record, we conclude that defendant's appellate contentions are not supported by the evidence and are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Like Judge Marino, we find no basis on which to conclude that the prosecutor committed a gross and patent abuse of discretion, and we affirm for the reasons stated in the judge's cogent oral opinion.

Affirmed.

When caught, defendant confessed to the thefts, admitted her actions were wrong, and described her conduct as "stupid."

Defendant's appendix does not even include a copy of her PTI application.

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A-5587-07T4

October 1, 2009