STATE OF NEW JERSEY v. O.M.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6196-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

O.M.,

Defendant-Appellant.

________________________________________________________________

November 15, 2011

Submitted October 18, 2011 - Decided

Before Judges Baxter and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-01-0101.

Joseph E. Krakora, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the briefs).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant O.M. appeals from a judgment of conviction for third-degree theft and from his three-year probationary sentence. He contends that he was wrongfully denied admission into the Pretrial Intervention (PTI) program, N.J.S.A. 2C:43-12 to -22, and that his sentence was excessive. We affirm.

Defendant was the manager of a Dunkin' Donuts. From November 16 through November 27, 2009, he withheld twelve deposits of daily receipts totaling $22,012.78. Defendant admitted stealing the deposits and explained that he needed money to pay bills and to help his family in Mexico. Defendant had been in the United States illegally for seven years.

On January 20, 2010, a Monmouth County grand jury charged defendant in a single count indictment with third-degree theft of movable property, currency in excess of $500, N.J.S.A. 2C:20-3(a). Defendant applied for admission into the PTI program. After the prosecutor denied defendant's application and the Law Division denied defendant's appeal from the prosecutor's decision, defendant accepted a plea offer and pled guilty to the charge in the indictment. On June 11, 2010, the court sentenced defendant to three years probation conditioned upon completion of 196 days in the county jail (time served), ordered him to make restitution, and imposed appropriate fines and penalties. As a result of his conviction, defendant will likely be deported.

Defendant presents the following arguments for our consideration:

POINT I

THE STATE'S DECISION TO DENY DEFENDANT PARTICIPATION IN THE PTI PROGRAM CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION; THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO ENTER PTI.

POINT II

THE SENTENCE DEMONSTRATED THE UNFAIRNESS OF THE REJECTION FROM POST-CONVICTION RELIEF; THE SENTENCE WAS EXCESSIVE.

We first address defendant's argument that his PTI application was wrongfully rejected. Defendant applied for PTI on March 10, 2010, and the PTI investigator recommended that he be accepted into the program. On March 23, 2010, the prosecutor issued a memorandum rejecting the application. The memorandum provides in relevant part:

The PTI investigator has recommended the defendant for PTI. I disagree. The reasons for denial are as follows:

1.) 2C:43-12e(2) The facts of the case.

The facts of this case show that the defendant was placed in a position of trust with his victim employer, the Dunkin' Donuts. Subsequently they discovered he was making late deposits and then began stealing money. Over a period of approximately eleven days the defendant stole a total of $22,012.78 from the victim. This was not a minor theft but a substantial amount of money taken. Further, the defendant violated the trust bestowed upon him in his capacity as manager for the Dunkin' Donuts.

Further, according to the PTI report, the defendant is illegally in this country and has been here for the last seven years.

According to Guideline 3(k) restitution or community service or both may be included as part of an individual's service plan when such a requirement promises to aid the rehabilitation of the offender. In this case the defendant does not appear to have the ability or the inclination to pay restitution.

The State has considered the positive factors in the defendant's application. The State though finds that the negative factors significantly outweigh the positive making the defendant an inappropriate candidate for PTI.

Defendant appealed the denial of his PTI application to the Law Division, which upheld the prosecutor's decision. Judge Francis J. Vernoia reviewed the prosecutor's memorandum and determined that the reasons for rejecting defendant's PTI application were proper, logical, and not in any way arbitrary. The judge noted that defendant's offense did not involve one instance of theft, but instead many separate instances over a short period of time. The judge reiterated that defendant's offense breached the trust of his employer. Finally, the judge noted that defendant had stolen in excess of $20,000, had none left, and had been unemployed for three months at the time of his PTI interview.

Defendant argues that the prosecutor's rejection of his PTI application constituted a patent and gross abuse of discretion. Defendant emphasizes that he had no prior criminal record, took the money to pay bills and help his family in Mexico, had started to repay the money, and had his employer s consent to participate in PTI provided he made restitution. Defendant maintains that the prosecutor did not consider all of the relevant statutory factors enumerated in N.J.S.A. 2C:43-12(e) and the Guidelines in Rule 3:28, improperly discriminated against him based on his immigration status, and improperly concluded that he would be unable to pay restitution.

PTI is codified in N.J.S.A. 2C:43-12 and implemented under Rule 3:28. The program is discretionary and a defendant's admission into PTI requires a positive recommendation from the criminal division manager as well as the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). The "courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003). That deference to the prosecutor has been described as "'enhanced' or 'extra' in nature." Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)).

In view of the wide latitude and enhanced deference afforded prosecutors when making PTI determinations, our scope of review of a prosecutor's objection to an applicant's admission into PTI is limited. Ibid.; Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 126-27 (1979). An applicant "generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008). In order to overcome a prosecutor's rejection, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff d, 193 N.J. 507 (2008)).

Although a prosecutor's statement of reasons for denying a PTI application must do "more than parrot in purely conclusory terms the language of the Guidelines[,]" a prosecutor need not "provide a defendant with a detailed report outlining every step taken en route to his decision." State v. Sutton, 80 N.J. 110, 117 (1979). The prosecutor should, however, "note the factors present in defendant's background or the offense purportedly committed which led him to conclude that admission should be denied." Ibid.

Here, the prosecutor considered the facts of the case. N.J.S.A. 2C:43-12(e)(2). The prosecutor rejected the application because defendant violated the trust bestowed upon him in his capacity as a manager for Dunkin' Donuts, stole a substantial amount of money, had been an illegal immigrant for the last seven years, and did not appear to be able to make restitution. The prosecutor considered the positive factors in the defendant's application but found them significantly outweighed by the negative factors. In view of those considerations, we conclude defendant has failed to establish by clear and convincing evidence that the prosecutor's refusal to admit him into PTI was a patent and gross abuse of discretion.

Contrary to defendant's contention, the prosecutor did not rely exclusively upon defendant s immigration status; and the prosecutor s consideration of defendant s immigration status was not improper. Although a defendant's status as an illegal immigrant may not serve as the sole basis for denying a PTI application, it can be a relevant factor when taken into account with other relevant factors. State v. Liviaz, 389 N.J. Super. 401, 403 (App. Div.), certif. denied, 190 N.J. 392 (2007). The prosecutor's decision fully complied with Liviaz.

Defendant also maintains that the prosecutor's suggestion he would be unable to make restitution was speculative. However, by his own admission, while gainfully employed, he was unable to pay bills and maintain his family, stole a significant amount of money over a short period of time, and had none of that money left when arrested. Those circumstances provide concrete support for the prosecutor s determination.

Defendant contends in Point II that the probationary sentence imposed in accordance with his negotiated plea agreement was excessive and underscores the unfairness of his rejection from PTI. We have considered this argument in light of the record and applicable legal principles and find it to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

A