STATE OF NEW JERSEY v. ANDREA G. RAMIREZ

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

ANDREA G. RAMIREZ,

Defendant-Appellant.

____________________________________________

May 15, 2015

Submitted April 27, 2015 Decided

Before Judges Leone and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-05-00976.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jonathan M. Carrillo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Andrea Ramirez appeals the trial court's order upholding the denial of her application to Pretrial Intervention ("PTI"). We find no abuse of discretion in the PTI denial and, therefore, affirm.

The record establishes the following facts. Defendant was employed as a private security guard at the Newport Mall in Jersey City. On January 9, 2013, Jersey City police were notified of a theft at a T-Mobile kiosk at the mall. When police arrived, defendant, together with three other mall security guards, informed police that they had observed a male suspect. Thereafter, police reviewed mall surveillance video that showed defendant and the three other mall security guards taking cell phones from the safe in the kiosk. Initially, defendant denied involvement with the theft, but after being shown the surveillance video, she admitted the theft. Three stolen cell phones were recovered from defendant's apartment.

On April 9, 2013, defendant, together with the three other mall security guards, were indicted and charged with third degree crimes of burglary, theft, and conspiracy to commit theft. Defendant applied for admission to PTI. In a letter dated August 13, 2013, an assistant prosecutor rejected defendant's PTI application and cited four reasons for that rejection. Defendant appealed to the Law Division and on October 4, 2013, after hearing oral argument, the Law Division rejected defendant's PTI appeal.

On October 25, 2013, defendant pled guilty to an amended charge of fourth degree theft in violation of N.J.S.A. 2C:20-3. Defendant was sentenced to one year of probation and the remaining counts were dismissed. The issue of restitution was not decided at sentencing and was reserved.

Pursuant to Rule 3:28(g) defendant now appeals the Law Division's denial of her PTI application. The three co-defendants also applied to and were rejected from PTI. The co-defendants also pled guilty to amended fourth degree offenses and were each sentenced to one year of probation.

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." State v. Nwobu, 139 N.J. 236, 240 (1995). The goal of PTI is to allow, in appropriate situations, defendants to avoid the potential stigma of a guilty conviction and the State to avoid "the full criminal justice mechanisms of a trial." State v. Bell, 217 N.J. 336, 347-48 (2014).

PTI is governed by statute and court rule. See N.J.S.A. 2C:43-12 to -22; R. 3:28; Pressler & Verniero, Current N.J. Court Rules, Guidelines to R. 3:28 (2015). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Dalglish, 86 N.J. 503, 513 (1981)). "Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Accordingly, "prosecutors are granted broad discretion to determine if a defendant should be diverted" to PTI instead of being prosecuted. State v. K.S., 220 N.J. 190, 199 (2015) (citing Wallace, supra, 146 N.J. at 582); see State v. Negran, 178 N.J. 73, 82 (2003) (courts must "allow prosecutors wide latitude").

"Thus, the scope of review is severely limited." Negran, supra, 178 N.J. at 82 (citing Nwobu, supra, 139 N.J. at 246). Reviewing courts must accord the prosecutor "extreme deference." Nwobu, supra, 139 N.J. at 246 (quoting Kraft, supra, 265 N.J. Super. at 112); State v. Leonardis, 73 N.J. 360, 381 (1977) ("[G]reat deference should be given to a prosecutor's determination not to consent to diversion."). "In order to overturn 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. Watkins, 193 N.J. 507, 520 (2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305-06 (App. Div. 2007)). "[I]nterference by reviewing courts is reserved for those cases where needed 'to check [ ] the most egregious examples of injustice and unfairness.'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting Negran, supra, 178 N.J. at 82 (internal quotation marks omitted)). On this appeal, we apply the same standard of review of the PTI denial as the Law Division. See State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015).

In this case, the Assistant Prosecutor issued a letter explaining that she had reviewed and evaluated all of the relevant reports and information concerning defendant's PTI application and the application was being rejected for four reasons. Those reasons were: (1) the nature of the offense, (2) the facts of the case, (3) the victim did not wish to forego prosecution, and (4) the need of society in prosecuting violators. The four reasons are all relevant considerations under N.J.S.A. 2C:43-12(e) and Guideline 3 to Rule3:28.

In making its decision, the Law Division carefully considered all of defendant's arguments and the reasons of the prosecutor. The Law Division then found that the prosecutor's rejection of defendant's PTI application did not constitute a patent and gross abuse of discretion.

On this appeal, defendant solely contends

THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO PTI IS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION, WHICH MUST BE CORRECTED BY THIS COURT

As part of that argument defendant makes three principal contentions, none of which are persuasive.

First, defendant argues that three of the criteria relied upon by the prosecutor were improperly based on defendant having been employed as a security guard at the mall where the theft was committed. We disagree. The prosecutor appropriately considered defendant's status as a security guard. In referring to the nature of the offense, the facts of the case, and the needs of society, it was not an abuse of discretion for the prosecutor to consider defendant's employment status as it related to each of those separate criteria. Importantly, the prosecutor considered each of those three criteria independently and had valid reasons for relying on each of those relevant factors.

Next, defendant argues that T-Mobile's desire to have the State continue prosecution was really a desire for restitution and the prosecutor inappropriately reasoned that restitution could be paid more effectively in probation rather than in PTI. A review of the record, however, does not show that the prosecutor was rejecting defendant from PTI merely because of a desire to get restitution. Instead, the prosecutor cited to the appropriate consideration that the victim, here T-Mobile, desired not to forego prosecution. The victim's desire to forego or not to forego prosecution is a relevant consideration under the statute and the rule. See N.J.S.A. 2C:43-12(e)(4); Pressler & Verniero, supra, Guideline 3 to R. 3:28. It was not an abuse of discretion for the prosecutor to consider restitution as it related to the factor of whether the victim wanted to continue prosecution given the facts of this case. Of note, there is nothing in the record to suggest that the prosecutor was evaluating the victim's desires purely on the basis of restitution.

Finally, defendant argues that the prosecution selectively relied on certain unfavorable factors and ignored allegedly favorable personal factors concerning defendant. In support of that argument, defendant points out that she is a mother in her mid-twenties, she has no prior criminal record, she served in the Army National Guard, she cooperated with the police, and the offense was not violent. The prosecutor considered all of that information, but exercised discretion in citing valid considerations and rejecting defendant from PTI. Indeed, a court must "presume that a prosecutor considered all relevant factors, absent a demonstration by defendant to the contrary." Wallace, supra, 146 N.J. at 584. Here, defendant made no such demonstration.

In short, defendant argues for reversal of the prosecutor's decision by asking this court to substitute its judgment for the judgment of the prosecutor. Such a substitution is not appropriate nor is it allowed under the Act, rule or case law. Here, there was no abuse of the prosecutor's discretion and the decision of the Law Division denying defendant's appeal from her PTI rejection is affirmed.