STATE OF NEW JERSEY v. WILLIAM ROSEMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM ROSEMAN and LORI LEWIN,

Defendants-Respondents.

___________________________________________________

November 20, 2013

Argued September 17, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-04-0769.

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

Patricia Prezioso argued the cause for respondent William Roseman (McCusker, Anselmi, Rosen & Carvelli, attorneys; Ms. Prezioso, on the brief).

Alan L. Zegas argued the cause for respondent Lori Lewin (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the brief).

PER CURIAM

Defendants William Roseman, who is now and was at all relevant times the Mayor of Carlstadt, and his ex-wife, defendant Lori Lewin, were indicted and charged with, among other things, second-degree official misconduct, N.J.S.A. 2C:30-2(a), as a result of Lewin having received, after the divorce, benefits through Roseman's health care plan with Carlstadt. In this appeal, the State argues the trial judge overstepped her bounds by permitting defendants to apply for pretrial intervention (PTI) near the eve of trial and by overruling the prosecutor's objection to defendants' PTI applications. We reverse as to Roseman and remand for further consideration of Lewin's PTI application.

I

Roseman has been the Mayor of Carlstadt since 1996 and, through that position, was provided with the benefits of a health care plan that covered both him and his family. Roseman and Lewin divorced in 2000. Their judgment of divorce imposed no obligation on Roseman to provide Lewin with health insurance coverage; Lewin's employer provided her with coverage. Roseman should have, but allegedly failed, to advise his employer of the divorce. Consequently, Lewin received prescription drug and dental benefits through the coverage provided by Carlstadt. Years later, when these circumstances came to light, the claims were resubmitted to Lewin's health insurer, which, for the most part, reimbursed Carlstadt; Lewin compensated Carlstadt for the remainder.

A grand jury indicted both Roseman and Lewin on June 4, 2009, charging them with third-degree conspiracy, N.J.S.A. 2C:5-2, third-degree theft by deception, N.J.S.A. 2C:20-4, and second-degree official misconduct, N.J.S.A. 2C:30-2(a). Although Lewin was not and had not been a public servant, she was charged with second-degree official misconduct, apparently on an accomplice liability theory.

Approximately one month after the original indictment, the State made plea offers, recommending probation conditioned upon restitution if defendants pleaded guilty to third-degree theft. The prosecution also sought as part of the plea offer Roseman's resignation from his position as mayor, and his consent to lifetime disqualification from public employment. Defendants rejected these offers.

Defendants' subsequent PTI applications were rejected in either late 2009 or early 2010. The State asserts that his attorney thereafter represented that Roseman would accept PTI on the conditions that he make restitution, resign from office, and be subject to lifetime disqualification from public employment. In this regard, the prosecutor sought and obtained the Attorney General's consent to PTI pursuant to those conditions. See N.J.S.A. 2C:43-6.5(d)(1). If Roseman accepted, the State also agreed to an outright dismissal of the charges against Lewin. In March 2010, Roseman rejected PTI on those conditions. The following month, the grand jury returned a superseding indictment, charging defendants with two counts of third-degree conspiracy, two counts of third-degree theft by deception, and two counts of second-degree official misconduct.

Both defendants moved for dismissal of the superseding indictment. On August 31, 2010, the trial judge granted the motion as to the official misconduct counts. We granted the State's motion for leave to appeal and, almost exactly one year from the dismissal, we reversed. State v. Roseman and Lewin, No. A-0992-10 (App. Div. Sept. 1, 2011). The Supreme Court denied Roseman's motion for leave to appeal.

Following our disposition in the earlier appeal, the matter was assigned a trial date before a different judge, who then inquired about the history of any plea negotiations. The State advised that Roseman had previously been offered entry into PTI conditioned on his resignation and a lifetime ban from public office that he rejected. The judge was also advised that Roseman had rejected an offer that he plead guilty to fourth-degree theft along with his resignation and consent to permanent disqualification from public office. Thereafter, the judge allowed defendants to reapply for PTI. On June 29, 2012, over the prosecutor's objection, the judge permitted both defendants to enter PTI without requiring Roseman to resign from his position as Carlstadt mayor to which he had been re-elected in the interim or requiring that he be permanently disqualified from public office.

The State appeals the admission of both defendants into PTI. The State argues that the applications were untimely and that the judge engaged in a "patent and gross abuse of discretion" in "evaluat[ing] the case as if she stood in the shoes of the prosecutor."

II

We first reject the State's argument that the applications were untimely. Certainly such applications should be made expeditiously after commencement of the criminal proceedings and the PTI Guidelines declare that such an application should be filed "not later than 28 days after indictment." R. 3:28, Guideline 6. Defendants originally made a timely PTI application, which was denied. What we consider here is a second application, essentially a revisitation of the first.

Although the benefits for both sides in the assertion of a timely PTI application "[t]o relieve defendants from the anxiety of facing prosecution, to apply appropriate rehabilitative measures at an early date, and to effect savings in criminal justice resources," R. 3:28, Official Comment to Guideline 6 are not necessarily vindicated by the lengthy time the matter had been pending when revisitation was permitted, these circumstances alone do not permanently foreclose reconsideration of a previously denied PTI application. Indeed, the Rule anticipates the potential for postponements for as long as three years. See R. 3:28(c)(2). Mere delay alone and here the reopening of the PTI application occurred approximately two years after the original denial1 is not a reason for denying relief that, in the interest of justice, ought to be provided.

III

A

In turning to the prosecutor's objection to defendants' admission to PTI, we initially recognize "the close relationship of the PTI program to the prosecutor's charging authority" and the "wide latitude" that courts allow prosecutors "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); see also State v. Nwobu, 139 N.J. 236, 246 (1995). The Supreme Court has held, in this context, that prosecutors' decisions are entitled to "enhanced" or "extra" deference, State v. Baynes, 148 N.J. 434, 443 (1997), thereby "severely limit[ing]" the scope of judicial review, Negran, supra, 178 N.J. at 82; Nwobu, supra, 139 N.J. at 246. In short, judicial review "serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

As with the review of any other discretionary ruling let alone a ruling entitled to enhanced or extra deference the question is not whether we would agree or disagree with the prosecutor's decision if we were in the prosecutor's shoes "but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254. To overcome a prosecutor's decision, a defendant must, "by clear and convincing evidence," establish that the decision constituted a patent and gross abuse of discretion. State v. Watkins, 193 N.J. 507, 520 (2008).

In Roseman's situation, to which we turn next, we conclude that the heavy burden imposed on defendant in presenting "clear and convincing evidence" that the prosecutor patently and grossly abused his discretion was not met.

B

Although the facts relevant to the alleged offenses, which we briefly outlined earlier, may not be substantially disputed, the parties greatly disagree with the degree of venality to be affixed to defendants' alleged acts or omissions. The trial judge appeared to view what occurred as a mere oversight and that defendants intended no harm, as revealed by her reference to the number of explanation of benefits forms (EOBs) sent to defendants that revealed a benefit was received by Lewin:

The State claims that Roseman was aware that Carlstadt was paying the benefits for which Lewin was not entitled to as he received multiple EOBs. However, the State ignores that out of the 100 EOBs that were mailed to the defendants, approximately only 13 referenced Lewin.

[Emphasis added.]

From the State's standpoint, Lewin should not have received any benefit, and the fact that thirteen percent of the EOBs received over the course of seven years revealed that she did receive a benefit through the use of public funds was hardly de minimis. The judge was not permitted to substitute her view of the significance of the benefits received by Lewin over the course of seven years in place of the prosecutor's. The State's contention that this benefit was significant was not clearly and convincingly shown to be a patent gross abuse of discretion.

In addition, the judge observed in examining the circumstances from Roseman's standpoint that "it was not Roseman who submitted the insurance claims, but Lewin or her doctors and pharmacists." The argument that "Roseman did not submit any false claims or documents to anyone," however, overlooks that it is alleged Roseman did not inform Carlstadt's health plan administrator of the change in his marital status and, as mentioned above, also said nothing despite his alleged receipt of EOBs which memorialized the payment of benefits on Lewin's behalf. Roseman may not have taken any affirmative acts but failed to do acts required of him in light of the circumstances.

To be sure, other relevant factors may support defendants' PTI applications, including: defendants' motivation and age; defendants' desire to forego prosecution; personal problems, character traits and the probability the matter may be remedied through rehabilitation; the condition or situation is conducive to change through supervisory treatment; and the absence of any prior or a continuing pattern of anti-social behavior. See N.J.S.A. 2C:43-12(e)(3), (4), (5), (6), (8). Briefly, there was purportedly no motivation for Roseman to engage in the conduct charged because he was not obligated to provide health coverage for Lewin, or on Lewin's part because she was covered by her employer. In addition, neither defendant had any prior history of involvement in the criminal justice system, and Roseman apparently reported the error that led to the charges. And restitution has already been made.

But the trial judge was mistakenly dismissive of the State's position that not only were defendants charged with a second-degree offense, which gives rise to a presumption against PTI admission, see R. 3:28 Official Comment to Guideline 3, but also that the matter at least insofar as Roseman is concerned involved an alleged theft of public funds by a public official over the course of many years, and there is an arguable need for public prosecution of such wrongdoings. See N.J.S.A. 2C:43-12(e)(7). In addition, the State argues that diversion from prosecution for conduct that allegedly involves the theft of public funds would "exacerbate th[at] social problem," N.J.S.A. 2C:43-12(e)(11), and the value of supervisory treatment is "outweighed by the public need for prosecution" of these types of offenses, N.J.S.A. 2C:43-12(e)(14).

With regard to Roseman, the trial judge also appears to have given little or no weight to the presumption against PTI admission for public officials whose offenses involve or touch upon that defendant's public office or employment, see N.J.S.A. 2C:43-12(a)(3) and (b). In this regard, the judge likened this case to State v. Hoffman, 224 N.J. Super. 149, 151 (App. Div. 1988), where a constable was charged with official misconduct because, in entering a dwelling of a defendant in a civil suit, the constable harbored the incorrect belief he was authorized even though the writ of replevin was unsigned. In that case, we reversed the trial judge's order that the prosecutor's objection to diversion into PTI did not amount to "an egregious injustice and unfairness or a patent and gross abuse of discretion." Id. at 157. In so holding, we determined, among other things, that "[a]lthough, technically, defendant's conduct involved a breach of the public trust, the circumstances do not justify a determination that admission of the defendant into PTI would deprecate the seriousness of the offense or be an insufficient deterrent to defendant and others." Id. at 156.

In relying on Hoffman, the trial judge did not appreciate the fact that Hoffman was decided long before the 2007 amendments to N.J.S.A. 2C:43-12. That is, the statute upon which Hoffman was based expressed the legislative intent that PTI "[p]rovide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with 'victimless' offenses." N.J.S.A. 2C:43-12(a)(3). In 2007, the Legislature added to the end of that provision an exception for "defendants who were public officers or employees charged with offenses that involved or touched their office or employment," L. 2007, c. 49, 9, recognizing that such an offense is not "victimless." And, at the same time, the Legislature similarly added the following to N.J.S.A. 2C:43-12(b): "There shall be a presumption against admission into a program of supervisory treatment for a defendant who was a public officer or employee whose offense involved or touched upon his public office or employment." Rather than express dismissiveness for the prosecutor's concerns about the nature of the offenses and the alleged theft of public funds, the trial judge was required to give weight to the fact that Roseman is a public officer and the alleged offenses "touched upon" his office in determining whether the prosecutor's objection constituted a patent and gross abuse of discretion.2

Although Roseman has forcefully argued that the alleged offenses are the product of an innocent mistake that has since been rectified, we are not persuaded that the prosecutor abused his considerable discretion in objecting. Indeed, in the final analysis, the question presented does not turn on "the weight of the evidence of guilt or innocence," State v. Smith, 92 N.J. 143, 147 (1983), or the trial judge's view that Roseman's actions or inactions constituted mere inconsequential mistakes. The prosecutor was entitled to rely on the presumptions against PTI for second-degree offenses and for offenses committed by a public official touching upon his public office, N.J.S.A. 2C:43-12(b), and neither the trial judge nor this court is licensed to second-guess the prosecutor's decision. We, thus, reverse the order insofar as it relates to Roseman.

C

Lewin's situation, however, is different. The presumptions against diversion contained in either subsection (a) or (b)(3) of N.J.S.A. 2C:43-12, do not apply to her. Moreover, we are concerned by the absence of an individual assessment of Lewin's circumstances in the prosecution's determination to object to her PTI admission. The record demonstrates that consideration of Lewin's eligibility for PTI was repeatedly linked to Roseman's. This was inappropriate and carried the potential to lead to an injustice. As the Supreme Court has held, "PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). We are not satisfied that Lewin ever received individualized consideration of her PTI application.

This does not mean Lewin was entitled to PTI or that we should affirm the order in question as it applies to her. Instead, we remand for further examination of Lewin's PTI application based not on that which Roseman is or is not willing to agree but based solely on Lewin's own individual circumstances.

IV

To summarize, we reverse the trial court order of June 29, 2012, insofar as it directs Roseman's admission into the PTI program over the prosecutor's objection. Because the prosecutor's objection to Lewin has heretofore been tied to Roseman's circumstances, we remand for further consideration based purely on an individualized consideration of her situation.

Reversed in part; remanded in part. We do not retain jurisdiction.

1We would further note that the official misconduct charge was dismissed by the trial court on August 31, 2010, and not reinstated by this court until September 1, 2011.

2Interestingly, the trial judge considered the fact that defendant was reelected after the indictment became known to the public during the mayoral campaign. Although the statute and rule do not necessarily delineate all the factors relevant to the calculus, we reject consideration of a public official's reelection as a fact worthy of consideration.