On appeal from Superior Court of New Jersey, Law Division, Mercer County, Ind. No. 04-01-0008.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2006
Before Judges Kestin, Weissbard and Payne.
Defendant, Charles Watkins, appeals from an order of February 22, 2006, denying his appeal of the State's rejection of his application for entry into the Pre-Trial Intervention (PTI) program, R. 3:28, following his indictment for third-degree theft by deception, N.J.S.A. 2C:20-4 (count one), and fourth-degree unsworn falsification to authorities, N.J.S.A. 2C:28-3a (count two). Following the denial of his appeal, defendant entered a guilty plea to count one and, pursuant to a plea agreement, was sentenced to a three-year probationary term with a condition of restitution in the amount of $7619.78. If defendant completed the restitution before three years, his probation would be terminated after two years. Appropriate penalties and assessments were also imposed.
On appeal, defendant argues that the State's rejection of his PTI application, in the face of a recommendation for admission by the Criminal Division Manager, constituted a gross abuse of discretion. We reverse and remand for reconsideration of defendant's application in light of the views expressed in this opinion.
The facts leading to defendant's indictment were set forth in the State's rejection letter of April 19, 2004:
These charges are based on misrepresentation that Mr. Watkins made to the New Jersey Department of Labor (DOL) in order to receive unemployment benefits to which he was not entitled. Mr. Watkins began receiving unemployment benefits in May 1998 when he was temporarily laid-off from Trenton Psychiatric Hospital. Mr. Watkins' unemployment benefits were extended in 1999 under the "Additional Benefits During Training Program" (ABT) whereby certain "eligible" claimants may obtain an extension of unemployment insurance benefits while pursing [sic] education and job training skills to enhance their employment opportunities. Mr. Watkins pursued a degree at the community college while receiving UI benefits under the ABT program but knowingly failed to report his re-employment with the Trenton Psychiatric Hospital to the Department of Labor.
Between January 23, 1999 through May 22, 1999, Mr. Watkins cashed nine unemployment checks, all of which required him to certify that he was unemployed, collecting $5,670 in unemployment benefits. Based upon his earnings at Trenton Psychiatric Hospital during this time period, Mr. Watkins was not entitled to any of this money.
Apparently efforts were made to resolve the matter civilly but to no avail. The indictment followed.
In denying defendant's appeal, the judge wrote as follows:
During the hearings on the appeal, the State initially asserted three bases for PTI denial: the fact that the defendant was a state employee and the policy of the Attorney General's Office was to hold state employees to a higher standard of conduct and deny them PTI entry; the fact that the offense occurred over a five-month period of time and involved nine separate unemployment checks; and the defendant's prior criminal behavior, which involved a 1990 disorderly persons conviction for receiving stolen property. At a subsequent hearing conducted on November 19, 2004, the State withdrew the defendant's employment with the State as a basis for rejection and relied upon the two other aforementioned bases. After considering those bases for rejection, the Court finds that the State's denial was not arbitrary or capricious and, therefore, denies the defendant's appeal of his PTI rejection.
At the outset, we note our limited scope of review. Due to the close relationship between the PTI Program and the prosecutor's charging authority, "courts allow prosecutors wide latitude in deciding whom to divert into the PTI Program and whom to prosecute through a traditional trial. The deference has been categorized as 'enhanced' or 'extra' in nature." ...