STATE OF NEW JERSEY v. LALELEI KELLY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1335-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LALELEI KELLY,

Defendant-Appellant.

_________________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGELA KEMP,

Defendant-Appellant.

______________________________________________________

August 14, 2014

Argued February 25, 2014 Decided

Before Judges Messano, Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation Nos. 11-01-0038 and 11-01-0039.

James H. Maynard argued the cause for appellants (Maynard & Sumner, L.L.C., attorneys; Mr. Maynard, on the brief).

Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief).

PER CURIAM

In May 2010, the Middlesex County Prosecutor's Office issued warrant-complaints charging defendants Lalelei B. Kelly and Angela Kemp (collectively, "defendants") with fourth-degree uttering false writings or records, N.J.S.A. 2C:21-4; third-degree theft by deception, N.J.S.A. 2C:20-4(a); third-degree conspiracy to commit theft by deception, N.J.S.A. 2C:5-2(a)(1); and fourth-degree false swearing, N.J.S.A. 2C:28-2(a). It was the State's essential allegation that defendants, who resided in Perth Amboy and were employed by the Plainfield Board of Education, conspired with Steven Gallon III, the superintendent of that school district and a resident of South Plainfield, to execute necessary documents so as to falsely claim that their children resided at Gallon's address, thereby enabling the children to attend South Plainfield's public schools.

Defendants applied for admission to the Pre-Trial Intervention Program (PTI), and, on August 11, 2010, the Criminal Division Manager recommended that both be admitted to the program. The State indicated it would consent to defendants' admission into PTI, conditioned upon, among other things, defendants' agreement "never to seek public employment in New Jersey, pursuant to N.J.S.A. 2C:51-2d."1 In October, the assistant prosecutor advised defense counsel that each defendant would be required to enter into a "[c]onsent [o]rder agreeing to neither seek nor accept employment in New Jersey as a condition of . . . entry into PTI." On January 6, 2011, in a letter to defense counsel, the State consented to defendants entering PTI, subject to revised conditions, which continued to include defendants' agreement "never to seek public employment in New Jersey."

On January 28, 2011, the State filed single-count accusations against defendants, charging each with third-degree theft by deception, N.J.S.A. 2C:20-4. On January 31, 2011, represented by counsel, defendants and Gallon appeared before the Law Division judge. Defendants waived their right to have the matter presented to the grand jury and entered not guilty pleas on the record. The judge confirmed that the PTI conditions "would not be construed to limit . . . Kelly's ability to seek public employment in a school district outside the State or other jurisdiction." Kemp's counsel confirmed his understanding that she would be permitted to "work in public schools" in Florida, if she desired.

Each defendant, her attorney and the assistant prosecutor signed a consent order in which she agreed to "never seek nor accept employment in any New Jersey Public school or public school system."2 A handwritten addendum on both orders stated that the agreement "shall not be construed to limit defendant's ability to seek or obtain public employment in any other jurisdiction." Defendants successfully completed PTI on January 31, 2012. Pursuant to Rule 3:28, a different Law Division judge entered orders on March 13, 2012, dismissing the accusations against defendants.

On July 26, 2012, defendants filed a "Motion to Modify Sentence," requesting that the court vacate the consent order pursuant to the March 13, 2012 "Pretrial Intervention Program Order of Dismissal and Discharge of Bail." The State opposed the motion.

It was undisputed that defendants entered into voluntary agreements to pay restitution to the South Plainfield School District, and both completed their financial obligations in this regard. Defense counsel certified that Kemp now resided in Florida and was seeking "public employment" there. He further certified that Kemp was unable to gain public employment in Florida because the consent order was "accessible from an interstate background check." He further noted that the New Jersey Department of Education was "currently considering a possible revocation of . . . Kemp's professional teaching certificate, which will have a direct impact on the status of . . . Kemp's Florida certificate and her ability to obtain public employment in other jurisdictions." Counsel attached a letter from the "New Jersey Criminal History Review Unit" (the "Review Unit") indicating that Kemp's "criminal history report" revealed she was "'accepted into [PTI] . . . conditioned upon [a] consent order not to seek employment in public school system.'" Counsel claimed this information "will . . . be used as a bar from public employment in other jurisdictions."

Kemp's certification reiterated the salient facts contained in her attorney's certification. She further certified that, when she entered PTI, it was her understanding she could not seek "public employment for a one year time period," and she believed that once she completed PTI, the consent order "would be dismissed." Counsel and Kelly filed similar certifications in support of Kelly's motion.

The second Law Division judge, who entered the order dismissing the accusations upon defendants' completion of PTI, heard oral argument on October 3, 2012.3 Defense counsel argued that the parties had previously agreed that "the conditions of PTI would not affect . . . or limit [the defendants'] ability to obtain employment in other states . . . including in public schools." Defendants also argued that the consent orders should have been vacated following their completion of PTI, because the orders were conditions of the PTI supervision, and such conditions cannot survive termination of the supervisory treatment period. The State agreed that defendants' criminal histories, as reported by the Review Unit, incorrectly failed to limit the school employment prohibition to New Jersey, but otherwise argued that defendants consented to the orders which imposed reasonable conditions for defendants' diversion into PTI.

The judge agreed to "sign an order directing the [p]rosecutor to . . . do everything in his power [so] that the records accurately reflect that the employment limitation was only . . . to deal with New Jersey . . . . And the parties specifically agreed that [it] would not impact . . . employment anywhere else." The judge stated that he was "prepared to direct the [p]rosecutor to ensure that the information put in the computer is accurate and corrected . . . [and] in addition . . . the [S]tate should also . . . ensur[e] that the ultimate disposition is [that] the charge [was] dismissed . . . ."

On February 6, 2013, without any further oral or written statement of reasons, the judge issued an order, submitted by defense counsel, that denied defendants' motion to vacate the consent order based upon defendants' successful completion of PTI. We consolidated defendants' separately-filed appeals.

Defendants raise two points for our consideration:

POINT I

Appellants have successfully completed the Pretrial Intervention Program; therefore, the "Consent Order restricting Appellant's employment" should terminate along with other PTI conditions.

POINT II

The Consent Order should be vacated as a condition of PTI, as the purpose of Pretrial Intervention is Rehabilitation.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Initially, we note that each defendant filed her notice of appeal before the February 2013 order was signed by the judge, and each notice of appeal sought review of the judge's oral opinion of October 3, 2012. However, "appeals are taken from judgments or orders and not from the court's reasoning." Kandrac v. Marrazzo's Mkt. at Robbinsville, 429 N.J. Super. 79, 84 (App. Div. 2012) (citations omitted), certif. denied, 213 N.J. 538 (2013). Nevertheless, we consider the appeal as having been timely filed from the February 2013 order that denied defendants' motion to vacate the consent orders.

When originally filed, defendants' motions sought modification of their sentences, although the body of each notice of motion stated that the relief sought was vacation of the consent order.4 A motion to modify a sentence is cognizable pursuant to Rule 3:21-10. Simply stated, defendants were never sentenced, because the accusations were dismissed upon successful completion of PTI. See N.J.S.A. 43-13(d) ("Upon completion of supervisory treatment, and with the consent of the prosecutor, the complaint, indictment or accusation against the participant may be dismissed with prejudice."); see also State v. Bell, 217 N.J. 336, 349-50 (2014) (noting that PTI is "a pretrial diversionary program[] . . . . It is not now and never has been a sentencing alternative . . .").

We also agree with the State that that "once a party consents to an order or judgment, that party cannot appeal with respect to that [o]rder or [j]udgment." See, e.g., Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 207 (App. Div. 2009) ("'An 'order . . . consented to by the attorneys for each party . . . is . . . not appealable.'") (quoting Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950).

We reject the late-asserted claim by defendants that they did not understand the consent orders would have continued vitality after PTI ended. The "Special Conditions of PTI Supervision" form signed by defendants when admitted into the program contains an even more expansive prohibition, i.e., that each defendant must never seek public employment in [New Jersey]." (Emphasis added). The same form also provided that each defendant would "[s]ign [a] [c]onsent [o]rder regarding same." It is also clear from the colloquy in court on January 31, 2011, that the first judge adequately explained the conditions that the prosecutor required as a predicate to his consent, and that both defendants understood and agreed to those terms. If they believed the consent orders would be vacated per force upon completion of PTI, we note that defendants did not move to vacate the consent orders on March 13, 2012, when the judge entered orders of dismissal pursuant to Rule 3:28; instead, they waited more than four months to bring their motions to "modify" their sentences.

Lastly, it is quite clear that defendants' objections to the consent orders stemmed not from the actual language of the order, which the judge noted in colloquy accurately reflected defendants' understanding of the PTI conditions. Rather, defendants sought to collaterally attack the consent orders because of the manner by which they were reflected in the Review Unit's data base, and how that data was being accessed by other jurisdictions. We fail to see how this provides a basis for the relief defendants sought in the Law Division.

The judge instructed the State to do whatever was necessary to correct any misinformation the consent orders engendered in the data supplied by the Review Unit. We were advised at oral argument that the prosecutor indeed undertook such efforts. However, to the extent defendants were aggrieved by the Review Unit's actions, any relief would be more appropriately sought before the administrative agency responsible.

In sum, the judge properly denied the motions, and we affirm the order of February 6, 2013.

II.

Defendants argue that despite any procedural problems raised by their appeals, we should nevertheless address the substance of their arguments in order to provide guidance to trial courts, prosecutors and the bar. They contend that in a general sense, no condition of entry into PTI should continue in effect after the order of dismissal following successful completion of the program. Defendants argue that to permit the prosecutor to require conditions that have permanent vitality subverts the overriding rehabilitative purposes of the program. See, e.g., Bell, supra, 217 N.J. at 347 (quoting State v. Nwobu, 139 N.J. 236, 240 (1995) ("'[PTI] is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior.'") (alteration in original).

We acknowledge the concerns raised by defendants' arguments. However, the Court has already decided that a prosecutor may condition entry into PTI upon a defendant's resignation from a position of public employment held at the time.

In State v. DeMarco, 107 N.J 562, 563 (1987), the prosecutor would not consent to the defendant, a police officer, entering PTI unless he resigned his position. The Law Division ordered the defendant's admission into the program, and we reversed that decision. Ibid. In affirming with modification, the Court said that "it is within the prosecutor's discretion to decide that defendant is a suitable candidate for PTI as an ordinary citizen, but not as a police officer." Id. at 571. In addressing Justice Handler's dissent, which concluded it was an abuse of discretion for the prosecutor to "condition" the defendant's admission into PTI upon resignation, id. at 573, the majority of the Court expressed a very practical concern:

[W]e are loathe to foreclose defendant from PTI by ruling that the prosecutor may not so condition defendant's admission. Because of the prosecutor's position, the necessary implication of the dissent . . . is to force the defendant out of PTI and into the defense of a criminal prosecution.

[Id. at 572.]

Undoubtedly, these same practical concerns frequently confront individual criminal defendants and prosecutors throughout New Jersey. Defendants must decide whether to agree to a prosecutor-imposed condition of PTI, or go to trial. Prosecutors must decide whether their objection to an unconditional defendant's PTI application will sustain judicial scrutiny on appeal, or whether justice will be served if a trial results.

Defendants argue that DeMarco did not squarely establish the reasonable outer limits on the prosecutor's discretion to impose conditions. Since the DeMarco Court only considered resignation from the position the defendant then held, it did not consider whether a prosecutor-imposed condition could have continued vitality after PTI was successfully completed. In other words, the Court in DeMarco did not consider whether entry into PTI could be conditioned upon an agreement not only to resign from one's present positon, but also to never seek public employment again, or, in this case, public employment in a New Jersey school.

We have upheld the exercise of the prosecutor's discretion to impose significant, indeed penal and permanent consequences, upon a defendant as a condition of entry into PTI. In State v. Mosner, 407 N.J. Super. 40, 56 (App. Div. 2009), we considered "whether . . . the prosecutor could condition [the] defendant's PTI admission on a guilty plea to a motor vehicle charge carrying a mandatory term of imprisonment." We concluded that based upon the particular facts of the case, "the prosecutor had adequate grounds to deny [the] defendant unconditional PTI admission." Id. at 57. In Mosner, the defendant proceeded to trial on the criminal charges and was ultimately convicted, resulting in a term of incarceration. Id. at 48.

While we recognize the significant issues posed by defendants' arguments, we refuse to decide them here. Defendants voluntarily and with full advice of counsel consented to the conditions imposed upon their entry into PTI, and, for the reasons already stated, they are not entitled to relief. We also do not view the issues raised as likely to escape future review. Undoubtedly, some defendants will continue to consent to prosecutor-imposed conditions rather than proceed to trial, but, as the Court noted in DeMarco, that is not necessarily a deleterious or unjust outcome. In another case, a defendant may refuse to accept the prosecutor-imposed condition, as did the defendant in Mosner, and proceed to trial, in which event the prosecutor's exercise of discretion will be subject to our review. Lastly, a defendant may appeal the prosecutor's refusal to consent to his or her unconditional entry into PTI, and the issue will again be joined.

Affirmed.

1 N.J.S.A. 2C:51-2(d) provides that in addition to forfeiting the public office then held, see N.J.S.A. 2C:51-2(a), under certain circumstances a "person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions."

2 It is unclear from the record how or why the State's position changed to some degree, by limiting defendants' voluntary forfeiture of public employment only to public schools or school systems in New Jersey.

3 Defendants waived their right to appear at this hearing but were represented by counsel.

4 We are unaware of, and defendants have failed to bring to our attention, any statute or Court Rule that permits a motion to vacate an interlocutory order entered in a criminal proceeding that has subsequently been dismissed. Rule 4:50-1(e) provides relief from a "final judgment or order" when "it is no longer equitable that the judgment or order should have prospective application . . . ." However, the Rule is inapplicable to criminal proceedings. See R. 4:1 (limiting application of the "rules in Part IV" to the "practice and procedure of civil actions . . . .").