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State v. Kern.

November 10, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
V.
BETTY KERN, DEFENDANT-APPELLANT.



Before Judges Pressler, Kimmelman, and Ciancia.

The opinion of the court was delivered by: Ciancia, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 13, 1999 - Decided November 10, 1999

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

The opinion of the court was delivered by

This appeal arises out of defendant's unsuccessful application to enter the Pretrial Intervention Program (PTI) and her subsequent conviction for theft by deception (welfare fraud) following a bench trial. The issues we decide include whether defendant's application for entry into the PTI program was appropriately denied, whether an incriminating statement by the defendant given at a PTI rejection hearing is admissible in the subsequent trial on the criminal charges, and whether the Judge who presides at a PTI rejection hearing may also conduct the subsequent bench trial on the criminal charges.

A one-count indictment filed on March 15, 1995 charged Betty Kern with theft by deception, N.J.S.A. 2C:20-4, in that she failed to report employment income to the Monmouth County Board of Social Services "on or about and between July 1989 through September 1991 . . . ." The amount of theft was alleged to be $5,432. Defendant applied for admission to the Pretrial Intervention Program but was denied. She contested her rejection, and a hearing was conducted before the designated Judge authorized to enter PTI orders. N.J.S.A. 2C:43-12(d); R. 3:28, Guideline 8. In the course of that hearing, defendant admitted her guilt of the criminal charges. The hearing Judge denied the appeal of the PTI rejection, and defendant subsequently waived her right to a jury trial. The bench trial which followed was conducted by the same Judge who heard defendant's appeal from the PTI rejection. Defendant was found guilty as charged and sentenced to a three-year period of probation. She was also ordered to pay $4,618 in restitution to the Monmouth County Board of Social Services. Appropriate penalties and fines were imposed.

I.

Defendant contends that improper considerations caused her PTI rejection, and she should be reevaluated under the correct standards. We agree.

It is not clear who interviewed defendant, but it is clear that the interview was not the beginning of a beautiful friendship. Even from the cold record, the hostility directed at defendant is apparent. That hostility may have been fostered in part by defendant's personality. She is an emotional woman holding very definite opinions that she is not reluctant to express. A PTI applicant's attitude and demeanor are certainly relevant considerations in determining "amenability to correction and responsiveness to rehabilitation . . .," N.J.S.A. 2C:43-12(b), but all relevant factors must be considered. State v. Bender, 80 N.J. 84, 93 (1979). As we said in State v. Imbriani, 291 N.J. Super. 171, 179 (App. Div. 1996), "[c]onsideration of the individual and all of the surrounding circumstances is a necessity with respect to the PTI program."

Here many factors were considered by the interviewer but often superficially, sometimes inappropriately, and always in a way that cast defendant in the worst possible light. It may well be that defendant's attitude and demeanor prevented the interviewer from being objective, but defendant was nevertheless entitled to a full and fair evaluation.

The trial Judge recognized some of these failings in the evaluation, but did not believe they compelled defendant's admission into the program. He was not prepared to say the refusal was a patent and gross abuse of discretion. Nor are we. We agree that ordering the prosecutor to accept defendant into the program was not the appropriate remedy. A prosecutor's decision to reject a PTI applicant is afforded great deference and will rarely be overturned. State v. Baynes, 148 N.J. 434, 443-444 (1997), quoting State v. Wallace, 146 N.J. 576, 585 (1996), and State v. Nwobu, 139 N.J. 236, 246 (1995). Nevertheless, even absent a patent and gross abuse of discretion, a decision to reject an applicant from PTI may be so deficient as to justify a reconsideration of the application. As our Supreme Court recently stated: "However, in cases of less egregious error on the prosecutor's part, for example, if a prosecutor fails to consider all the relevant factors or considers inappropriate factors, a court may remand the matter for further consideration [citation omitted]." State v. Caliguiri, 158 N.J. 28, 37 (1999). Stated somewhat differently, if a reviewing court finds that a prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion, although not a patent and gross abuse, and if the court is satisfied that the remand will serve a useful purpose, it may send the case back to the prosecutor. State v. Wallace, 146 N.J. 576, 583 (1996).

We are satisfied a remand would serve a useful purpose in the present case. In support thereof we note the following. As one reason for rejection the interviewer concluded that welfare fraud "affects society as a whole." N.J.S.A. 2C:43-12(e)(7). Certainly on some level all crimes affect society, but welfare fraud is not a disqualifying offense. See State v. Mickens, 236 N.J. Super. 272 (App. Div. 1989); State v. Burger, 222 N.J. Super. 336 (App. Div. 1988). The interviewer's further statement that defendant "may have deprived other families who may have really needed assistance" is unfounded and unwarranted.

The interviewer also concluded defendant's crime was part of a continuing pattern of anti-social behavior. N.J.S.A. 2C:43-12(e)(8). Her "previous contact with the law" and her "involvement with this offense" constituted the justification. In fact defendant's previous contact with the law consisted of a 1980 simple assault conviction disposed of by a Tacoma, Washington, municipal court with a $100 fine and a thirty-day suspended sentence. Two other municipal court charges, one in 1973 and one in 1989, were dismissed. The present charges apparently stem from her intermittent employment as a nurse while receiving welfare for seventeen months during a twenty-six-month period. In concluding that defendant was demonstrating a pattern of anti-social behavior, no mention was made that while on assistance in the late 1970's, defendant attended college and earned a practical nurse license. She was off welfare for a number of years and ultimately went back to college and became a registered nurse. She also raised six children and dealt with a failed marriage that may very well ...


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