STATE OF NEW JERSEY v. SALVATORE VITALE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3059-06T53059-06T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SALVATORE VITALE,

Defendant-Respondent.

__________________________________

 

Argued November 13, 2007 - Decided

Before Judges Lintner and Alvarez.

On appeal from the Superior Court of

New Jersey, Law Division, Monmouth County, 06-06-1361.

Lisa Sarnoff Gochman, Deputy Attorney General, argued the cause for appellant (Anne Milgram, Attorney General, attorney; Ms. Gochman, of counsel and on the brief).

Michael R. Hobbie argued the cause for respondent (Hobbie, Corrigan, Bertucio & Tashjy, attorneys; Norman M. Hobbie, of counsel; Edward C. Bertucio, of counsel and on the brief).

PER CURIAM

On June 26, 2006, a Monmouth County Grand Jury returned an indictment charging defendant, Salvatore Vitale, with third-degree simulation of a motor vehicle insurance identification card, N.J.S.A. 2C:21-2.3a (Count One), and fourth-degree simulation of a motor vehicle insurance identification card N.J.S.A. 2C:21-2.3b (Count Two). Although the Pretrial Intervention Program (PTI) Supervisor "cautiously recommended" defendant's acceptance as an appropriate candidate for admission to PTI, the Attorney General's Office rejected defendant's application. Defendant appealed the rejection and the Law Division judge, over the State's objection, admitted defendant into the program. The State appeals and we reverse.

The facts are undisputed. At the time of the offenses, defendant was the Chief Executive Officer (CEO) and President of the New Jersey Exchange Insurance Company, a company authorized to write commercial automobile insurance policies for taxicabs. On August 19, 2004, defendant's son was stopped while operating defendant's 1996 Chevrolet in Englishtown. Because defendant's son was unable to produce a valid insurance card for the Chevrolet, he was instructed to produce proof at police headquarters within twenty-four hours. The following day, defendant presented a false insurance card purportedly issued by the New Jersey Insurance Exchange. On the same day, defendant was stopped driving his leased Mercedes. The car was impounded because he could not produce a valid insurance card. A few hours later, defendant presented a false insurance card for the Mercedes, purportedly issued by Allstate Insurance Company. Defendant was charged with the two subject offenses after it was discovered that the insurance cards presented were counterfeit.

Recommending enrollment in PTI, the Monmouth County PTI Supervisor made the following comments:

The defendant is a 53 year old married male making an application for the diversionary program.

Aside from experimental use of alcohol, the defendant denied having any history involving illicit substance usage.

The defendant reported that he is a college graduate who has built a career within the insurance industry. Unfortunately, his misuse of his authority while operating as CEO of the NJ Exchange Insurance Company contributed to his involvement in the present offense.

The defendant failed to admit any wrongdoing in the present offense, and he misused his position of authority in an attempt for personal gain. A criminal check revealed no prior arrests for the defendant. The dilemma remains whether or not the defendant would be a suitable candidate for the program. The defendant was afforded a position of authority and allowed poor judgement to step in and destroy whatever opportunities the government afforded him.

DAG Frank Holstein objects to the defendant being admitted in to the diversionary program and stated that his actions should not be overlooked.

Whether poor judgment or negligence, the defendant allowed himself to get involved in a situation that could've been avoided. He stated that he is presently working for another insurance company in New York and it is not certain, if his position at that company would pose another threat for the defendant to fall prey to poor judgement, if he is ever faced with a similar dilemma. It is cautiously recommended that the defendant receive the opportunity to receive PTI.

The State opposed defendant's enrollment essentially asserting: (1) the PTI supervisor's recommendation was devoid of any discussion of conditions or personal problems leading to defendant's commission of the offense; (2) defendant minimized his role by stating to the PTI officer that the "fraudulent insurance card [arrived] at the police station;" (3) defendant's statement to the PTI official that "he is presently working for another insurance company in New York and it is not certain, if his position at that company would pose another threat for [him] to fall prey to poor judgment," shows that defendant is not committed to the rehabilitation under the PTI program; (4) as an individual involved in the insurance industry defendant was aware of the risk involved in driving without insurance coverage; (5) as in insurance company official defendant breached his fiduciary duty and violated public trust because only agents and insurance company officials are permitted to issue insurance identification cards; (6) counterfeiting two different insurance cards within a twenty-four hour period bespeaks a willingness by defendant to engage in repetitive efforts to deceive the police; (7) defendant's age, education, and training indicates that he participated in the offense knowing the risks, rather than due to a mistake of judgment; and (8) societal needs, including the prevention of insurance fraud, requires assurance that offenses such as these committed by insurance officials not be tolerated.

In determining that the Attorney General's denial of defendant's application was a patent and gross abuse of discretion, the judge gave the following reasons:

I find that the State has based its entire rejection on the fact that this is a public policy feeling. That this person should not get PTI . . . because it's just not an ordinary offense, it's an insurance offense and that this defendant was an insurance official and should have known better.

I do not believe that that is a valid reason for rejection in PTI. And I also feel that the Prosecutor did not consider the other factors which would lead to his acceptance into PTI. Basically in reviewing the Prosecutor's rejection, it is based on a feeling, on a public policy decision that someone who is in the insurance business and who commits a crime or commits an insurance fraud should not be admitted into the PTI program.

On appeal, the State contends that it considered all the relevant factors and the judge mistakenly determined that it patently and grossly abused its discretion in rejecting defendant's PTI application.

PTI is a discretionary means of "diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999) (citing N.J.S.A. 2C:43 12a(1); R. 3:28, Guidelines for the Operation of Pretrial Intervention in New Jersey, Pressler, Current N.J. Court Rules, comment on R. 3:28, Guidelines 1(a) (1999)). Both the Guidelines and the statute prescribe five goals respecting the PTI program:

(1) providing offenders with early rehabilitation, if that service will deter future criminal conduct; (2) offering an alternative to offenders who would be harmed by traditional prosecution; (3) providing a less burdensome prosecution for offenders charged with "victimless" offenses;

(4) assisting prosecutors in pursuing serious criminal matters by removing less serious cases from the criminal calendar; and (5) deterring future criminal conduct by PTI participants.

[Caliguiri, supra, 158 N.J. at 35 (citing N.J.S.A. 2C:43-12a(1)-(5); Pressler, supra, Guidelines 1(a)-(e)).]

Although any defendant charged with a crime is eligible for PTI, the Guidelines and the statute provide specific criteria for the prosecutor and criminal manager to consider when reviewing a PTI application. Caliguiri, supra, 158 N.J. at 36 (citing N.J.S.A. 2C:43-12e(1)-(17); Pressler, supra, Guidelines 2 and 3). Those criteria include "the nature of the offense, the circumstances of the crime, the motivation and age of the defendant, and the needs and interests of the victim and society." Ibid. (citing N.J.S.A. 2C:43-12e(1)-(3), (7); Pressler, supra, Guidelines 3). Guideline 2 provides that "[e]ligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur."

In the appropriate circumstances, a prosecutor may reject an applicant solely because of the nature of the offense. Caliguiri, supra, 158 N.J. at 36 (citing State v. Leonardis, 73 N.J. 360, 382 (1977)). This appropriate circumstance limitation is addressed by Guideline 3(i), which provides that applications "should generally be rejected" when the crime is:

(1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime . . . [or] a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs . . . .

[Pressler, supra, Guidelines 3(i).]

It is, therefore, appropriate to reject PTI based solely upon the nature of the offense where the Guidelines express a presumption against PTI. State v. Baynes, 148 N.J. 434, 445-47 (1997).

Judicial review and intervention is permitted because the decision to divert is "analogous to the prosecutor's charging function," thus involving "the implicit exercise of judicial power." Caliguiri, supra, 158 N.J. at 37 (citing State v. Nwobu, 139 N.J. 236, 245 (1995)). However, the power to judicially review a prosecutor's decision respecting diversion is tightly circumscribed. Ibid. (citing State v. DeMarco, 107 N.J. 562, 566 (1987)). In order to overturn a prosecutor's decision, there must be a judicial finding that "the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of discretion.'" Ibid. (quoting State v. Wallace, 146 N.J. 576, 584 (1996)).

Applying these principles, we agree with the State that its rejection of the PTI Supervisor's recommendation was premised on a consideration of several relevant factors and was not limited to what the judge believed was merely public policy reasons. Defendant's position in a quasi-public industry, which facilitated his ability to commit the offense, his commission of the same offense within a twenty-four hour period, together with the concomitant threat to society posed by the operation of uninsured vehicles, and the societal need to eliminate insurance fraud, implicate N.J.S.A. 2C:43-12e(1), (2), and (14) (the nature of the offense, the facts of the case, and the value of supervisory treatment verses the pubic need for prosecution) as well as Guideline 3(i)(4) (breach of the public trust where admission in PTI would deprecate the seriousness of the offense). Beyond that, defendant's minimization of the offense, together with his statements concerning possibility of future poor judgment, demonstrates a lack of amenability to the rehabilitation process, a consideration implicating Guideline 2, as well as N.J.S.A. 2C:43-12e(3) and (6) (defendant's motivation and likelihood that defendant would be conducive to change through participation in PTI).

In our view, the judge mistakenly focused on one narrow aspect of the case rather than considering the relevant and appropriate reasons urged by the State. We are satisfied that, under the circumstances, the State's decision to reject defendant's PTI application did not represent a clear error in judgment. Accordingly, the Order of January 26, 2007, admitting defendant into PTI, is vacated.

Reversed.

 

(continued)

(continued)

9

A-3059-06T5

November 21, 2007