STATE OF NEW JERSEY v. ERIC SIEBERG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5919-05T15919-05T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ERIC SIEBERG,

Defendant-Respondent.

___________________________________________________________

 

Argued March 20, 2007 - Decided April 5, 2007

Before Judges Coburn, Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Somerset County, No. 05-12-01047-I.

Nicole McGrath, Assistant Prosecutor, argued the

cause for appellant (Wayne J. Forrest, Somerset

County Prosecutor, attorney; Ms. McGrath, on

the brief).

Peter S. Hamerslag argued the cause for respondent.

PER CURIAM

The Somerset County Prosecutor appeals from a Law Division order admitting defendant, Eric Sieberg, into the Pretrial Intervention Program ("PTI") over his objection. Since Sieberg failed to clearly and convincingly establish that the Prosecutor's decision was a patent and gross abuse of his discretion, we reverse the order and remand the case for processing in the ordinary course.

In December 2005, a Somerset County Grand Jury returned an indictment charging Sieberg with two counts of third degree receiving stolen property, N.J.S.A. 2C:20-7; two counts of third degree burglary, N.J.S.A. 2C:18-2; and one count of fourth degree joyriding, N.J.S.A. 2C:20-10. On February 14, 2006, the Criminal Division Manager declined to recommend Sieberg for PTI because the crimes charged were part of a continuing pattern of anti-social behavior and because he was convicted of shoplifting five months before he was arrested for the crimes at issue. Although the letter states that Sieberg's "background and circumstances" were considered, it provides no details in that regard. The Prosecutor endorsed the rejection letter, while reserving the right to provide a comprehensive analysis should Sieberg appeal. Sieberg did appeal to the trial judge, and the Prosecutor submitted a letter-brief in opposition, which, in pertinent part, reads as follows:

Here, defendant was properly rejected from PTI based on N.J.S.A. 2C:43-12e(8), namely the extent to which defendant's crime constitutes part of a continuing pattern of anti-social behavior and N.J.S.A. 2C:43-12e(9), the applicant's prior record of penal violations. In view of the State and the PTI Program Director, defendant's conduct comprising the indictment evinces a pattern of anti-social behavior. Defendant's burglaries and thefts were not an isolated event, but rather a spree among multiple dates in October 2005, where defendant burglarized two separate storage facilities, one belonging to Hillsborough victim John Riccardo and another belonging to Branchburg victim Samuel Ornstein. Defendant entered the victims' garage-like structures to look for and steal all terrain vehicles. Defendant indeed stole two all terrain vehicles from Mr. Riccardo and then on another occasion, stole two all terrain vehicles from Mr. Ornstein. Furthermore, on yet an additional instance, namely September 22, 2005, defendant was caught in Manville operating another stolen all terrain vehicle belonging to yet additional victim [sic], Douglass Campbell. Defendant was indicted for joyriding as a result of that incident.

Defendant committed the burglaries, thefts and joyriding a mere four to five months after receiving a municipal court shoplifting conviction, where a $255 fine was imposed. Defendant's prior record of penal violations, namely his shoplifting conviction, weighs heavily in favor of PTI rejection because the instant indictment follows it so closely in time. Despite defendant's shoplifting conviction and fine, he quickly chose to re-offend in a more serious nature, by committing multiple burglaries and thefts. Therefore it is respectfully submitted that the State's rejection of defendant from PTI based on the statutory factors enumerated in the criminal code (N.J.S.A. 2C:43-12e(8) and N.J.S.A. 2C:3-12e(9)), is hardly a patent and gross abuse of discretion.

The State has considered the factors set forth in R. 3:28 and defendant's argument enunciated in his March 5, 2006 brief. The crux of that argument is that defendant is amenable to rehabilitation because he has now realized the error of his ways. However in the State's view, defendant's indictment for multiple crimes committed on various occasions, which closely follow his shoplifting conviction and escalate in severity from the shoplifting conviction, militates against PTI admission. Society's need is also a factor for the State to consider in weighing a PTI application. N.J.S.A. 2C:43:12-3(7). Here, society would be best served by prosecuting defendant in the normal course, as the State is not confident that PTI will sufficiently punish or deter this defendant, who has started upon a path of committing offenses. See R. 3: 28 Guideline 3 Official Comment.

In an oral opinion delivered on May 30, 2006, confirmed by an order of June 1, 2006, the trial judge directed the Prosecutor to reconsider. The only reason the judge gave was this: "I don't find the factors in this case as presented by the State to be so compelling as to not warrant a reconsideration and that's my order."

In a letter dated June 6, 2006, addressed to defense counsel, the Prosecutor, after re-examining the case as ordered, gave this further explanation for his decision:

In the case at bar, the court was brief in its reasons for remand. It stated that reconsideration was appropriate because the State did not present factors that were so compelling as to not warrant reconsideration. The State interprets this ruling to mean that the court's issue was with the State's statement of reasons - either that they were not specific enough or that they failed to give a rational explanation for the result reached or that there is a question as to whether all relevant factors were considered. Presumably if the court felt the State considered inappropriate factors or that the prosecutor used unreliable information in finding the presence or absence of a particular factor, the court would have highlighted those narrow issues so that the State could address those specific judicial concerns.

Although the State wrote in its March 13, 2006 brief and expressed at oral argument on April 26, 2006 that it considered defendant's 16 page brief, exhibits and arguments for why he should be [sic] receive P.T.I., for purposes of reconsideration, the State shall more specifically discuss defendant's position herein:

Defendant's letter to defense counsel (Attachment A1 to defense brief dated March 5)

The State has now twice read this two page, single spaced letter where defendant writes about why he should receive P.T.I. Defendant, a young person, says that his life appears bright because he has a chance to work in an apprenticeship for graphic design. He writes that he might lose this chance if he had to go to jail. Notably precluding defendant from P.T.I. does not mean that the court will sentence him to jail, although the State does feel that jail is appropriate here and has made that a condition of its plea offer. Furthermore, defendant is 19 years old. He has an entire adult future where he can create new and additional career opportunities even if he does not receive P.T.I.

Defendant's admission that he stole because it was an adrenaline rush and was easy to get away with does nothing to convince the State that defendant is suitable for P.T.I. Indeed, defendant's reason for stealing is worrisome. Defendant's assertion that he now obtains a similar "rush" from riding BMX bikes and that the rush from bike riding is a motivation not to steal again is also unpersuasive. Notably defendant stole five all terrain vehicles, a type of motorized bike, in the case at bar. Why suddenly is defendant's alleged "rush" from riding bikes a deterrent to steal yet not a deterrent previously even though defendant's hobby with bikes pre-dates the case at bar?

Defendant's assertion that since his apprehension for the instant indictment he has changed his group of friends and lifestyle also carries slight weight given the fact that several months before committing the five crimes set forth in indictment number 05-12-01047-I, defendant had a perfect opportunity to re-evaluate his life: He was convicted and fined in municipal court for shoplifting. Not only did the municipal court experience fail to encourage defendant to change his life, but he chose to re-offend in a more serious way by committing the crimes in the case at bar.

The letter and contract from defendant's parents (Attachments B and C to defendant's March 5, 2006 brief)

The State has now read again the letter from defendant's parents indicating that they are disappointed defendant did not receive P.T.I. They are writing a favorable character reference for defendant, as one might expect parents of a 19-year-old accused to do. Defendant's parents argue that imprisonment would not suit defendant. Again, P.T.I. rejection does not necessarily mean the court will send a person to jail or prison. As stated at oral argument on April 26, 2006, defendant's parents opinion that defendant is polite, does his chores, has meals with them, attends church and has a good attitude pales in comparison to the fact that defendant committed multiple burglaries and third degree thefts with three different victims on various dates in September and October 2005, a mere four to five months after his municipal court shoplifting conviction and fine. Defendant might attend church and eat meals with his family, but there is also no denying that he too commits crime - a fact the Prosecutor's Office is charged with the responsibility to address. Defendant's parents may find defendant polite and positive, but the State cannot ignore defendant's emerging pattern of anti-social behavior and does not feel confident that P.T.I. will deter it. Furthermore, defendant's agreement with his parents to abide by house rules is no surrogate for consequences imposed by the criminal justice system and the deterrent that it will hopefully provide.

Defense counsel's brief

Defense counsel wrote a 16 page brief discussing the exhibits the State addressed above and legal argument. The State has read it several times and again in response to the court's re-consideration ruling. Much of defense counsel's legal argument discusses the P.T.I. Guidelines enumerated in Rule 3:28 and by statute. The State is simply not going to type in this letter every guideline as written in Rule 3:28 in an effort to say it was considered. It is sufficient that the State has read the guidelines enumerated in N.J.S.A. 2C:43-12 and R. 3:28 and defense counsel's interpretation of the applicability of those guidelines to this case.

Analysis of this case and why the State rejects defendant from P.T.I. is simple. Here, defendant was properly rejected from PTI based on N.J.S.A. 2C:43-12e(8), namely the extent to which defendant's crime constitutes part of a continuing pattern of anti-social behavior and N.J.S.A. 2C:43-12e(9), the applicant's prior record of penal violations and the extent to which these factors convince the State that the needs of society are best served by prosecution in the normal course. Defendant's conduct comprising the indictment evinces a pattern of anti-social behavior. Defendant's burglaries and thefts were not a single, isolated event. They involved multiple dates in October 2005, where defendant burglarized two separate storage facilities, one belonging to Hillsborough victim John Riccardo and another belonging to Branchburg victim Samuel Ornstein. Defendant entered the victims' garages to look for and steal all terrain vehicles. Defendant indeed stole two all terrain vehicles worth thousands of dollars from Mr. Riccardo and then on another occasion, stole two similarly valuable all terrain vehicles from Mr. Ornstein. The vehicles were not returned until defendant was apprehended by police. Furthermore, on yet an additional instance, namely September 22, 2005, defendant was caught in Manville operating another stolen all terrain vehicle belonging to yet additional [sic] victim, Douglass Campbell. Defendant was indicted as part of the instant indictment for joyriding as a result of that incident. Defendant admitted in his statement to police that when his parents asked him where he got the all terrain vehicles (he eventually began keeping the stolen vehicles at his house), he lied to his parents and stated that he purchased them himself. Defendant also initially lied to the police, stating that he purchased the all terrain vehicle they were asking him about at a swap meet for $800. This was also his excuse for not having a title or bill of sale. It was not until the police told defendant that the vehicle was worth far more than $800 that defendant admitted it was stolen and went on to confess to the other crimes contained in the indictment.

Again, defendant committed the burglaries, thefts and joyriding a mere four to five months after receiving a municipal court shoplifting conviction, where a $255 fine was imposed. Defendant's prior record of penal violations, namely his shoplifting conviction, weighs heavily in favor of PTI rejection because the instant indictment follows it so closely in time. Despite defendant's shoplifting conviction and fine, he quickly chose to re-offend in a more serious nature, by committing multiple burglaries and thefts of a greater magnitude than his previous shoplifting offense. The entire argument advanced by defense counsel, defendant, and defendant's parents that defendant has essentially realized the error of his ways and is a young person ready to select a more positive life is undercut by the fact that defendant had a significant "wake-up call" in municipal court when he was fined and convicted for shoplifting. He paid a consequence for that offense yet was not deterred. He quickly re-offended in a more serious way. While the State is certainly hopeful that defendant will become a law-abiding person, it is not secure that P.T.I. will procure that result. Prosecution in the normal course is more suitable for this defendant, who will not be deterred by P.T.I. Concomitantly, society will be best served by prosecution because it is in society's interest to eliminate criminal behavior.

As the State previously stated in its March 13, 2006 brief, society's need is a factor for the State to consider in weighing a P.T.I. application. Whether this need is expressed as consideration for the "needs of the victim and society" as written in N.J.S.A. 2C:43-12e(7), or whether it is expressed as "the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program" as written in N.J.S.A. 2C:43-12e(17) or whether the considerations of the official comment to R. 3: 38 Guideline 3 are applied as the State previously stated in its March 13th brief, in the State's view, despite defendant's contract with his parents, his letter, his parents' letter, and defense counsel's brief, the State does not feel society will be best served by entry into P.T.I. for all the reasons set forth herein. Prosecution in the normal course is more appropriate for all the reasons set forth herein and in the State's March 13, 2006 brief. Defense counsel's letters of May 30, 2006 have also been read. They state nothing new and do not alter the State's decision to reject defendant from P.T.I.

At the conclusion of further oral argument, the trial judge, on June 30, 2006, provided the following statement of reasons:

THE COURT: All right. Let me be brief and succinct about this. First of all, I am going to incorporate into the record the submission by Mr. Hamerslag of his analysis with respect to this defendant in his March 5th submission. I think that was the date, Mr. Hamerslag.

MR. HAMERSLAG: The date on the letter, yes, your Honor.

THE COURT: Sets forth those factors here and at length. I also incorporate into the record the submission by the State. I respectfully disagree with the prosecutor. I find having referred this case back to the P.T.I. director and the prosecutor for reconsideration that there's absolutely a patent and gross abuse of discretion in denying this defendant access to the P.T.I. program. Relying on State versus Wallace and the criteria set forth in that case, I'm satisfied that the focus of attention by the State, and I've heard it at the last argument, I heard it again today and it resounds through the State's brief, the criminal episode concept as one of the bases for the denial. This period of time pales in comparison to the criminal conduct in State versus Kern, 325 Super. 435 (1999), and State versus Nwobu, 139 New Jersey 236, (1995). The two cases cited in Mr. Hamerslag's brief which in those cases we got a six week period of commercial fraud found not long enough to qualify as a criminal episode to deny P.T.I. In Kern in excess of fifteen months of welfare fraud found by the Appellate Division was not sufficient to deny entry into P.T.I.

Here we have at best a three to four week episode of not a theft as we have in Kern or Nwobu but thefts for the purposes of riding these ATV, all terrain vehicles. ATVs I guess they are. Not for the purpose of taking the vehicles and reselling them. Not for the purpose of taking the vehicles and stripping the parts for sale, but for no other purpose than for want of a better word to characterize it the joyriding on the ATV. I agree, there was an entry, an illegal entry into a storage shed of each of the owner's properties for this defendant I guess and friends to retrieve these or take these ATVs and ride them around. But, nonetheless, the intent as I understand it and as I see it from what I've read is that he wanted to ride around on them. Not that he was going to resell them, as I've said, and not that he was going to strip them and sell them for parts.

Yes, he had an involvement in the Municipal Court. Maybe his parents knew. Maybe they didn't. Maybe they paid the fine. I don't know. But the fine for this -- for this Court to find that to take that conduct and have it rise to the level of some great indicia to this defendant of his anti-social behavior is too great a stretch for me when I consider the conduct of the young man and when it is balanced against the goals and purposes of the P.T.I. program. If this nineteen-year-old doesn't make it through the P.T.I. program and he is, as you suggest, prosecutor, escalating his criminal activity, well, he'll flunk the P.T.I program and be back in the court in the usual processing for any other defendant on an indictment, and if his conduct escalates we'll see him again and then he'll be playing in the big leagues perhaps. But in any event, I am going to order his entry into the P.T.I. program.

In deciding PTI applications, prosecutors must consider "an individual defendant's features that bear on his or her amenability to rehabilitation." State v. Nwobu, 139 N.J. 236, 255 (1995). And that evaluation "must be conducted in compliance with the criteria set forth in N.J.S.A. 2C:43-12e, and reinforced in Guideline 3 [of R. 3:28]." State v. Negran, 178 N.J. 73, 80-81 (2003). But prosecutors have "wide latitude" in their PTI decisions and our scope of review is "severely limited." Id. at 82. The judiciary's role is limited to checking "only the 'most egregious examples of injustice and unfairness.'" Ibid. (citing, among other cases, State v. Leonardis, 73 N.J. 360, 384 (1977)). And a "defendant attempting to overcome a prosecutorial veto must clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion . . . ." Ibid. (internal quotations omitted).

 
The trial judge did not fault the Prosecutor for failing to consider the mitigating aspects of the case; rather, he disagreed, although without explanation, with the Prosecutor's judgment regarding the weight to be given those matters. Furthermore, the trial judge failed to recognize that the Prosecutor was entitled to give substantial weight to the recently committed disorderly persons offense, which, like the present offenses, involved a form of theft, and was also entitled to view that offense in connection with the present charges as indicating a continuing pattern of anti-social behavior. See, e.g., State v. Brooks, 175 N.J. 215, 227 (2002). Although the Prosecutor's decision might be viewed as arguable, it cannot reasonably be said that it was arbitrary or a patent and gross abuse of discretion.

Reversed and remanded.

In your May 30, 2006 letter to the State you indicate that you did not pick up on everything the judge said since you were not expecting a substantive decision, however I took notes of his decision and feel confident recalling it.

Some parents might not be as accepting or na ve as defendant's, who according to defendant accepted that their 19-year-old son could make such expensive purchases. Didn't they know that he was just convicted in municipal court for shoplifting? Yet the defense would have the State forego prosecution of defendant simply because defendant's parents now promise to make him abide by house rules.

(continued)

(continued)

12

A-5919-05T1

April 5, 2007