STATE OF NEW JERSEY v. JAMES THOMAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5801-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES THOMAS,

Defendant-Appellant.

___________________________________________

Argued June 15, 2011 Decided July 1, 2011

Before Judges A. A. Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-09-0623.

Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Watson, of counsel and on the brief).

William A. Guhl, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Guhl, on the brief).

PER CURIAM

Defendant James Thomas appeals from: the June 18, 2008 order, upholding the recommendation against defendant's entry into the Somerset County Pretrial Intervention Program (PTI); and his subsequent conviction following a jury trial. We reverse the conviction based on an erroneous evidentiary ruling.

These are the salient facts. On March 6, 2007, defendant brought his 1994 Buick Park Avenue Sedan to Green Brook Pontiac Buick GMC Hummer (Green Brook) to be serviced. The next day, defendant learned that additional repairs were needed. Two days later, he picked up the car and learned that the cost of the service was $2,625.61. He issued a check from his Commerce Bank account for that amount. At the time, he knew that there were insufficient funds in his Commerce Bank account to cover the check. However, he alleges that he intended to transfer funds from his other accounts to cover the check. Defendant estimated that on that day, the combined balance of his other accounts was $5,400.

On Saturday, March 10, 2007, defendant's car broke down on the highway and he placed a stop payment on the check.1 The car was towed for repairs on March 17, 2007. The new repair shop advised defendant that the repairs made by Green Brook may have been unnecessary and may have contributed to the vehicle's engine problems.

Kathleen Lasheras, Green Brook's comptroller, testified that defendant's check was declined due to insufficient funds. Following Green Brook's practice, Lasheras redeposited defendant's check on or about March 17, 2009. She then received a notification that a stop payment had been placed on the check.

Ten days later, Lasheras wrote to defendant informing him that Green Brook had not been able to negotiate the check after two attempts and that he had ten days from the date of the letter to make restitution. The letter to defendant was sent via certified mail. It was returned unclaimed three weeks later. Lasheras contacted the Green Brook Township Police Department.

Detective Christopher Dill investigated the matter, subpoenaed Commerce Bank records, and interviewed defendant. Subsequently, defendant was arrested and charged with third degree issuing a bad check, N.J.S.A. 2C:21-5c(2).

Defendant applied for admission into the PTI program. The program director recommended that admission be denied because the "the crime or crimes defendant is charged with constitutes a part of a continuing pattern of anti-social behavior or the defendant has a record of criminal and penal violations and presents a substantial danger to others." The County Prosecutor followed the recommendation of the program director. The rejection referred to defendant's prior burglary convictions from October 1980 and March 1981, both from Illinois.

Defendant argued that he had only one burglary conviction, which occurred on October 6, 1980, and for which he was sentenced to three years incarceration. He disputed a March 26, 1981 burglary conviction. The State disputed defendant's assertion and proffered evidence that defendant received a two-year probationary sentence for the 1980 burglary conviction and a three year term of incarceration for the March 26, 1981 burglary conviction.

The judge upheld the prosecutor's denial, finding that there were "rational grounds" for the rejection. He reasoned that whether defendant has one or two burglary convictions is irrelevant because a single conviction provided a sufficient basis to deny entry into PTI.

Defendant filed a civil action against Green Brook. Prior to the criminal trial, the State moved in limine to bar defendant from introducing evidence of the action against Green Brook. The judge granted the State's motion.

Defendant was tried and convicted of third-degree issuing a bad check, N.J.S.A. 2C:21-5. The judge imposed a thirty-day suspended sentence and a two-year term of probation. Defendant was also ordered to pay restitution in the amount of $2,652.62 to Green Brook as well as mandatory fines and penalties.

On appeal, defendant contends:

THE REJECTION OF DEFENDANT'S APPLICATION FOR ADMISSION INTO [PTI] WAS A PATENT AND GROSS ABUSE OF DISCRETION.

We disagree.

N.J.S.A. 2C:43-12 and Rule 3:28, with its accompanying guidelines (Guidelines), sets out the "purpose, goals, and considerations relevant to PTI." State v. Negran, 178, N.J. 73, 80 (2003). PTI serves both prosecutors and applicants in that it "augment[s] the options of prosecutors in disposing of criminal matters . . . [and it] provide[s] applicants 'with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant.'" Ibid.

Admission into PTI requires a positive recommendation from the PTI director and the consent of the County Prosecutor. Negran, supra, 178 N.J. at 73; State v. Nwobu, 139 N.J. 236, 246 (1995). Admission determinations "are 'primarily individualistic in nature' and a[n administrator and] prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Id. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979).

Because the prosecutorial function is reserved to the executive branch, once a prosecutor, following the program director's recommendation against admission, determines not to consent to a defendant's application to a diversionary program, that decision is to be afforded enhanced or extra deference. State v. DeMarco, 107 N.J. 562, 566 (1987). Judicial review of a prosecutor's decision is severely limited "to check only the most egregious examples of injustice and unfairness." DeMarco supra, 107 N.J. at 566. Therefore, "[a]bsent evidence to the contrary, it is [to be] presumed that the prosecutor considered all relevant factors before rendering a decision." State v. Dalglish, 86 N.J. 503, 509 (1981). However, a prosecutor's discretion in respect to a PTI application is not without its limits. State v. Brooks, 175 N.J. 215, 225 (2002).

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' before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent." Nwobu, supra, 139 N.J. at 246 (quoting Kraft, supra, 265 N.J. Super. at 112,). That standard, which governs our review here, requires the following showing:

Ordinarily, an abuse of discretion will be manifest 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).]

Here, the judge followed these principles. The information obtained as part of the PTI evaluation of defendant supports the program director's conclusion, which the Prosecutor accepted, that defendant was not an appropriate candidate for the program. See Nwobu, 139 N.J. at 236. We affirm defendant's rejection from PTI.

Defendant also contends:

THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT TO PRESENT EVIDENCE EXPLAINING WHY HE REQUESTED THE STOP PAYMENT, WHICH WOULD HAVE EXCULPATED DEFENDANT, VIOLATED DEFENDANT'S RIGHT TO PRESENT A DEFENSE AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY A JURY. (U.S. CONST. AMENDS, VI, XIV; N.J. CONST. ART. I, PAR. 1, 10).

We agree.

The elements of the offense of issuing a bad check are: (a) issuing a check " for the payment of money, knowing that it will not be honored by the drawee," and (b) "payment was refused by the drawee for lack of funds, . . . after a deposit by the payee into a bank for collection or after presentation to the drawee within 46 days after issue, and the issuer failed to make good within 10 days after receiving notice of that refusal or after notice has been sent to the issuer's last known address." N.J.S.A. 2C:21-5a. Thus, the offense occurs when the issuer of the check "fails to make good within 10 days after receiving notice of the [drawee bank's] refusal." N.J.S.A. 2C:27-5a.

Here, long before Commerce Bank refused the check, defendant issued a stop payment for the check he had issued to Green Brook. There are no criminal penalties for issuing a stop payment against a check issued "for the payment of money." There is no provision of the Criminal Code that makes ordering a stop payment for a check a crime. Undoubtedly, there are civil consequences, but no criminal sanctions. Criminal statutes must be strictly construed. State v. Solarski, 374 N.J. Super. 176, 180 (App. Div. 2005); State v. Churchdale Leasing, Inc., 115 N.J. 83, 102 (1989).

Therefore, defendant's prosecution must be based on the elements set by N.J.S.A. 2C:21-5c. We conclude that, defendant was entitled to present the defense that his failure to "make good the check" within 10 days after Lasheras' notification was not conduct designed to wrongfully deprive Green Brook of its money, but conduct based on a reasonable belief that Green Brook was not entitled to the money.

The State argues that the stop payment order occurred after the check was refused. We reject this argument. It is for the jury to decide whether the stop payment defense was a sham or legitimate. Therefore, defendant was unduly prejudiced by not being allowed to present this defense to the jury.

We are mindful that, N.J.R.E. 403 specifically allows a judge, to exercise discretion to exclude otherwise admissible evidence under specified circumstances. Appellate courts must give substantial deference to evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) certif. denied, 163 N.J. 79 (2000). However, we reject the judge's reasoning that evidence of defendant's subsequent decision to stop payment on the check issued to Green Brook due to inadequate repairs was irrelevant. Pursuant to N.J.S.A. 2C:21-5, defendant's knowledge and conduct at the time he issued the check is not the only relevant inquiry. The additional relevant inquiry is whether defendant failed to make good the check within 10 days after notice of refusal. Both are pertinent to whether defendant intentionally issued the check "knowing" that the bank would not honor it. On this issue, there is a factual dispute for the jury to resolve. Defendant alleged that when he wrote the check, he believed it would be honored by the bank because he intended to deposit funds to cover it. He also asserted that he later stopped payment on the check due to a good faith belief that Green Brook had not provided the services for which it had charged him. Therefore, the judge abused his discretion by barring testimony from defendant explaining why he placed the stop payment order.

A

1 In his limine ruling, the judge acknowledged that the car broke down "shortly after it was serviced." Because defendant was not permitted at trial to refer to the alleged problems with Green Brook's repair job, defendant testified at trial that he had a "transportation problem" on that Saturday, March 10.