STATE OF NEW JERSEY v. DAMARRA SIMMONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4102-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMARRA SIMMONS a/k/a DAMARRA

GIBSON,

Defendant-Appellant.

_________________________________________________

September 24, 2010

Submitted September 7, 2010 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

07-07-2507.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Robert L. Sloan,

Assistant Deputy Public Defender, of

counsel and on the brief).

Robert D. Laurino, Acting Essex County

Prosecutor, attorney for respondent

(Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In March 2006, defendant, Damarra Simmons, a thirty-six year old married woman and mother of seven, took her eighty-one year old grandmother's bank card without her permission. Posing as her grandmother, defendant then told bank representatives that she had lost her card and arranged for a new one to be sent to her own address. Over the next three months, defendant stole approximately $12,000 from her grandmother's bank account, thereby eliminating her savings. Eventually, the bank reimbursed the grandmother for the sum of $9,159.25, leaving alleged unreimbursed losses of $4,920.73. On January 4, 2007, defendant turned herself in and, in a sworn statement, admitted to taking her grandmother's bank card and using it fraudulently to make unauthorized purchases.

On July 17, 2007, defendant was charged with third-degree identity theft, N.J.S.A. 2C:21-17 (Count One), and third-degree theft by deception, N.J.S.A. 2C:20-4 (Count Two). She applied for pre-trial intervention (PTI), an application that defendant's grandmother vehemently opposed. Defendant's application was rejected by Criminal Case Management. Following further review, it was also rejected by the Prosecutor. Defendant appealed, and the trial judge remanded the matter for reconsideration, noting that the Prosecutor had relied on defendant's participation in a continuing criminal enterprise in making her decision, and determining that factor to be inapplicable.1 Upon reconsideration, the application was again rejected, and upon appeal, the rejection was affirmed. However, the judge noted that, if the decision had been hers to make at the outset, defendant would have been accepted into the program.

Defendant then entered a conditional plea of guilty to the charge of theft by deception and was sentenced to four years of probation, conditioned upon defendant's employment, payment of $9,159.25 in restitution to the bank and completion of 150 hours of community service. Following sentencing, defendant appealed the denial of PTI, arguing that because the Prosecutor's rejection of defendant's application constituted a clear error of judgment, defendant's admission to the program should have been ordered by the trial judge, despite the Prosecutor's objection.

The State's position with respect to defendant's admission to PTI is set forth in a July 31, 2007 letter brief opposing defendant's second appeal from the Prosecutor's determination that she was not an appropriate candidate for the program. There, the Prosecutor noted that defendant attended Irvington High School, but dropped out in her senior year, obtaining her GED in 2006. As of July 2007, defendant was unemployed. She had admitted to occasional use of marijuana and alcohol, and she had tested positive for cocaine when evaluated on the State's behalf. Defendant had one prior arrest in 1989 for a drug offense, but no disposition was found. She had been charged with failing to send two of her children to school, and was subject to an active warrant for simple assault.

The State then addressed the nature of defendant's conduct, arguing that even if it did not fall within the presumption against admission contained in Rule 3:28's Guideline 3(e)(2) for an offense that was "part of a continuing criminal business or enterprise," the activity was not "an isolated spontaneous, temporary, spur of the moment, lapse in judgment either." Additionally, the State considered defendant's motive and harm to the victim, determining that defendant's conduct was particularly "mean spirited" and that defendant had violated the trust of her grandmother and had taken advantage of an eighty-one year old woman. Thus, it argued that deterrence was appropriate.

Additionally, the State determined, pursuant to N.J.S.A. 2C:43-12e(14), that defendant had failed to establish that the values of supervisory treatment would outweigh the public need for prosecution. In this regard, the State relied on the following considerations set forth in N.J.S.A. 2C:43-12e as aggravating factors: (1) the nature of the offense, (2) the facts of the case, (7) the needs and interests of the victim and society favored prosecution; (14) the crime was of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution, and (17) the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program. The State concluded that those factors "overwhelmingly" outweighed the considerations set forth in N.J.S.A. 2C:43-12e that the State regarded as mitigating: (3) the age of the defendant, (8) the applicant's crime did not constitute part of a continuing pattern of anti-social behavior, (10) the crime was not of an assaultive or violent nature, (12) the history of the use of physical violence toward others was scant, (15) the State's interests did not require prosecution because of defendant's involvement with other people in the crime, and (16) defendant's participation in PTI would not adversely affect the prosecution of co-defendants because there were none.

The State concluded:

Indeed, the defendant is not a neophyte in the criminal justice system, she failed to cooperate with criminal case management, she tested positive for cocaine abuse, lied about her number of children and as a thirty six year old has never really been gainfully employed. The State recognizes s[o]me positive qualities. She does not have prior criminal convictions and has not been involved in organized crime. However, these positive qualities did not deter her from preying upon her 81 year old grandmother.

In order to overturn the Prosecutor's rejection of her application for PTI, defendant must "'clearly and convincingly establish that the prosecutor's decision constitute[d] a patent and gross abuse of discretion.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305-06 (App. Div. 2007)). "A patient and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Ibid. (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996) (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985))). The Court has held that a judge may find a "patent and gross abuse of discretion"

if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.

[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]

To meet her burden, defendant asserted that she was thirty-seven years of age and lived with her husband and four of her children. She had completed employment training to become a home health care provider. She had no prior convictions and was willing to make restitution.2 Based on this background, defendant argued that her own interests, as well as those of the victim and society would be better served by diversion into PTI rather than prosecution. As a wife and mother, she had community connections and motivation for participation in PTI. In contrast, prosecution and conviction would impair defendant's ability to help to support her family and make restitution. Additionally, defendant relied upon her alleged cooperation with the police, acknowledgement of guilt, and her willingness to make restitution. Finally, defendant claimed, without further explanation, that "the nature of the offense and its background actually weigh in favor of defendant's admission to PTI." Asserting that the Prosecutor's denial of PTI was premised primarily on the nature and circumstances of defendant's offense, defendant argued those reasons did not justify rejection from participation in the program.

Our review of the record satisfies us that defendant failed to meet her burden of demonstrating a patent and gross abuse of prosecutorial discretion under Bender's standards. In that regard, it appears from that record that the Prosecutor considered all relevant factors, ultimately did not base her decision on irrelevant or inappropriate factors, and did not make a clear error in judgment. Nor did the Prosecutor's decision clearly subvert the goals underlying PTI. The fact remains that defendant breached the trust of her aging grandmother, she stole in excess of $12,000 from her, and she engaged in a somewhat lengthy and fraudulent course of conduct to do so. A prosecutor could reasonably find, under standards set forth in Rule 3:28 and N.J.S.A. 2C:43-12e, that such conduct required criminal prosecution. As a consequence, we affirm.

1 In this regard, the trial judge relied on our opinion in State v. Watkins, 390 N.J. Super. 302 (App. Div. 2007). That decision was affirmed by the Supreme Court after trial court proceedings in this matter were concluded. See State v. Watkins, 193 N.J. 507, 524 (2008) (holding that the presumption against admission to PTI set forth in Rule 3:28's Guideline 3(i)(2) when the offense was "part of a continuing criminal business or enterprise" did not apply to criminal activity that was merely "continuing," but only to activity that was part of a "continuing" criminal business or enterprise).

2 We note that in August 2008, defendant was found to have violated her probation by failing to make restitution. At that time, a new payment schedule was established. The record does not reflect whether that schedule was met.