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State v. Mickens

Decided: October 23, 1989.


On appeal from the Superior Court, Law Division, Passaic County.

Pressler, Long and Gruccio. The opinion of the court was delivered by Pressler, P.J.A.D.


This is an appeal from an order of the Superior Court, Law Division, affirming the rejection by the Passaic County Prosecutor of defendant Lorraine Mickens' application for admission to the pretrial intervention program (PTI). Concluding that the rejection constituted a patent and gross abuse of discretion, we reverse the order, vacate the ensuing judgment of conviction, and direct defendant's admission into the program.

Defendant, then 30 years old and the single parent of three children ages 10, 9 and 7, was indicted in March 1987 on two counts of theft by deception, contrary to N.J.S.A. 2C:20-4. Both arose out of her receipt of public financial assistance during periods when she was employed. The first count charged her with improper receipt of a total of $11,051 in categorical welfare payments during the four-month period from July 1981 to November 1981, the six-month period from December 1981 to May 1982, the four-month period from October 1982 to February 1983, and the thirteen-month period from February 1984 to March 1985. The second count charged her

with receiving a total of $4,679 in food stamps during the same periods.

Following the return of the indictment, defendant applied for PTI and was recommended for acceptance by the Program Director. The prosecutor disagreed with the recommendation, advising defendant of her rejection pursuant to PTI Guideline 3(i). That decision was affirmed by the trial judge, albeit reluctantly. Thereafter, pursuant to a plea negotiation which preserved defendant's right to appeal from the PTI rejection, she pleaded guilty to the first count and signed a civil judgment requiring her to make full restitution, a condition she had accepted as part of her PTI application. She was then sentenced to a probationary term.

According to this record, it appears that defendant, a high school graduate, had managed to complete a secretarial course in June 1981 and, despite her obligation to care for and raise her three children, she also managed to obtain secretarial employment during the periods referred to in the indictment at an hourly wage of between $4 and $5. She explained to the Program Director that she did not report this income to the welfare authorities, although she knew she was supposed to, because she still had "trouble making ends meet" and was otherwise unable to move herself and her children from what she described as "undesirable housing conditions." She was, in fact, during part of this time living with her children at the Alexander Hamilton Hotel, a welfare facility well-qualified for the characterization of "undesirable." She also lived for part of the time in an apartment in her mother's house, an arrangement she was forced to abandon when her mother sold the house and the new owner raised the rent beyond her capacity to pay. She finally succeeded in obtaining an apartment in a public housing project where she apparently still resides with her children.

Some months after her last improper receipt of welfare, defendant obtained a secretarial position with Merrill Lynch.

After some thirteen months there, she had done so well that her employer selected her for attendance at its stockbroker school. At about that time, the indictment was returned. Her superiors explained to her that in order to attend the school and pursue a stockbroker career, she would be required to be bonded, a requirement she would be unable to meet if convicted of a crime. As we understand the record, Merrill Lynch agreed to defer these career advancement plans until disposition of the criminal charge, retaining her in her secretarial capacity in the meanwhile. It is, however, clear that she was advised that if convicted that employment too would have to be terminated.

Finally, the record shows that defendant has no prior criminal record, no juvenile record, no history of any substance abuse, no history of any psychological problem and, as noted by the Program Director, "is sincerely sorry for what she has done." In seeking admission to PTI, she was required to state to the Program Director "why she felt she would be a suitable candidate for enrollment." Her reported response was that

she has never been in any trouble before; she has already caused enough embarrassment for herself and her family; she is the sole support of her three dependent children; she feels that she is now in a career position and that a conviction could cause her to lose her current employment and adversely affect future employment opportunities; she will never become involved in criminal activities in the future and she is willing to make full ...

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