STATE OF NEW JERSEY v. JEFFREY A. KAVIANI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0247-05T40247-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY A. KAVIANI,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 16, 2006 - Decided

Before Judges Lefelt and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Atlantic

County, Indictment No. 04-08-1750.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Raquel Y.

Bristol, Assistant Deputy Public

Defender, of counsel and on the

brief).

Jeffrey S. Blitz, Atlantic County

Prosecutor, attorney for respondent

(Jack J. Lipari, Assistant County

Prosecutor, of counsel and on the

brief).

PER CURIAM

After having his Atlantic County Pre-Trial Intervention Program (PTI) application denied, defendant Jeffrey Kaviani pled guilty to two counts of third-degree theft by deception, N.J.S.A. 2C:20-4. At sentencing, Judge Donio imposed two concurrent terms of five years probation conditioned on 270 days in the county jail to be served through the Day Reporting Program, 100 hours of community service, and $15,683.89 restitution for defendant's eighteen victims. The judge also ordered defendant to submit to random urine samples, attend vocational training and anger management, avoid Atlantic City casinos, continue AtlanticCare for gambling addiction, and pay the statutorily required fines and fees. Defendant now appeals from the denial of PTI, claiming the PTI director and prosecutor abused their discretion because they: (1) improperly assessed the nature of his offense; (2) failed to consider defendant's gambling addiction as a relevant factor; and (3) failed to give adequate consideration to the compelling reasons offered by defendant to overcome the presumption against his admission to PTI. We affirm.

N.J.S.A. 2C:43-12 and R. 3:28, along with its accompanying guidelines, outline the "purposes, goals, and considerations relevant to PTI." State v. Brooks, 175 N.J. 215, 223 (2002). Rule 3:28, Guideline 3(i) instructs that a PTI "application should generally be rejected" where defendant's crime was "part of organized criminal activity; or . . . part of a continuing criminal business or enterprise; or . . . a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime." Pursuant to Guidelines 2 and 3(i), defendant may rebut the presumption against PTI admission by demonstrating "amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable."

In reviewing PTI diversion decisions, we accord "'great deference'" to the prosecutor's decisions. State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Our review is "available to check only the most egregious examples of injustice and unfairness." State v. Leonardis, 73 N.J. 360, 384 (1977). We will reverse denials of acceptance only where the defendant "clearly and convincingly establish[es] that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of his discretion." Id. at 382. Such an abuse of discretion has not occurred here.

Even though the PTI director found defendant amenable to rehabilitation, defendant's application was nevertheless rejected by the director and prosecutor. Defendant's application was rejected "because of the calculated, sophisticated and on-going nature of [the] illegal conduct and also because of the number of people . . . victimized and the extent of their losses." The Director concluded that "[t]o divert a case of the magnitude of [defendant's] would serve to deprecate its seriousness," and that nothing "uncovered or presented during the PTI intake" overrides this conclusion.

We, as did Judge Donio, agree with this conclusion, even though we recognize that defendant acknowledged his wrongdoing; was willing to repay the stolen money; was relatively young; had an "almost non-existent prior record" and no co-defendants; had a "gambling addiction," which was probably the "root of his debt and the reason for his committing the crime"; had obtained a full-time job; and was amenable to rehabilitation. In short, we agree with the prosecutor and Judge Donio that none of these factors rebut the presumption favoring rejection based upon the nature of the crime.

Defendant committed eighteen counts of theft by deception over a four month period interrupted only by his arrest. Using his home computer, he advertised auto parts for sale on the internet that he did not have or intend to deliver. Through this deceptive, calculated, on-going course of illegal conduct, defendant stole thousands of dollars from eighteen victims. We cannot conclude that the prosecutor's rejection of this defendant's PTI application constituted a patent and gross abuse of discretion. See Leonardis, supra, 73 N.J. at 382.

Affirmed.

 

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A-0247-05T4

June 2, 2006