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State v. Burger

Decided: January 20, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CYNTHIA BURGER, DEFENDANT-APPELLANT



On Appeal from Superior Court, Law Division, Passaic County.

Gaynor and Arnold M. Stein. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

[222 NJSuper Page 338] In appealing from her judgment of conviction for obtaining financial assistance by false representations contrary to the provisions of N.J.S.A. 2C:20-4 and 2A:111-3, the trial court's refusal to overrule the prosecutor's rejection of defendant's

application for enrollment in the Passaic County pretrial intervention program is asserted as reversible error. The following appellate arguments are advanced by defendant in support of this contention:

I. THE DENIAL OF DEFENDANT'S APPLICATION FOR ADMISSION INTO THE PRETRIAL INTERVENTION PROGRAM CONSTITUTED A GROSS AND PATENT ABUSE OF DISCRETION.

A. The Defendant Showed Compelling Reasons Justifying Her Admission Into Pretrial Intervention.

B. The Guidelines Of Rule 3:28 and N.J.S.A. 2C:43-12 Were Not Followed.

II. SHOULD THIS COURT NOT FIND THAT THE PROSECUTOR'S DETERMINATION AMOUNTS TO AN ORDINARY ABUSE OF DISCRETION: NOT RISING TO THE LEVEL OF "GROSS AND PATENT" THE APPLICATION FOR ADMISSION INTO PTI MUST BE REMANDED TO THE PROSECUTOR FOR RECONSIDERATION.

III. THE TRIAL COURT'S AFFIRMANCE OF THE PROSECUTOR'S DECISION TO PRECLUDE MS. BURGER FROM ENROLLMENT IN PTI CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION BECAUSE THE TRIAL COURT APPLIED FACTORS FROM A PREVIOUS AND UNRELATED CASE CONCERNING A DIFFERENT DEFENDANT.

Following the denial of her appeal of the prosecutor's opposition to the suspension of criminal proceedings under R. 3:28, defendant entered a plea of guilty pursuant to a plea agreement. In providing a factual basis for her plea, defendant admitted that from 1977 through 1983 she received welfare and food stamps without disclosing that Kinnard Burton, the father of one of her children, had been residing with her and contributing financially to the support of the family. Defendant acknowledged that she had received approximately $25,000 in excess of the amount of public assistance to which she was entitled. During the course of the period in question, defendant signed thirteen continuances erroneously indicating that she had no income from sources other than her own employment.

The director of the county PTI project had determined that defendant satisfied the eligibility requirements under Guideline 3(i)(2) "to make her a suitable candidate and justify for enrollment." He further observed:

On her own behalf, the defendant stated that she has two (2) children whom she would like to raise rather than being placed in ...


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