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State v. Schmoll

October 25, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE J. SCHMOLL, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 06-04-382-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 9, 2007

Before Judges Lintner and Parrillo.

Defendant, George J. Schmoll, Jr., appeals from the May 30, 2006 order of the Law Division denying his motion to be admitted to the Pretrial Intervention (PTI) program over the objection of the Criminal Division Manager and the County Prosecutor. We affirm.

The facts relevant to this appeal are as follows. Defendant was charged in a Gloucester County accusation with third-degree theft by deception, N.J.S.A. 2C:20-4. The offense involved defendant's perpetration of a scheme against forty-seven companies in multiple jurisdictions over a roughly two-year period -- from July 19, 2004 to February 13, 2006 -- through the use of fraudulent rebate redemption forms sent by mail, by which he amassed in excess of $90,000.

Defendant waived indictment and pled guilty to the accusation. As part of the plea bargain, the State agreed to recommend non-custodial probation and not object to defendant making application for admission to PTI or maintaining his real estate broker's license. In accordance with the plea agreement, defendant was sentenced on September 1, 2006, to a two-year probationary term and was ordered to make restitution in the amount of $38,348.78.

Earlier, as also contemplated by the plea agreement, defendant applied for admission into the PTI program. In rejecting defendant's application, the Criminal Division manager relied on the fact that defendant was charged with acts that constituted participation in a criminal business or enterprise.

See Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler, Current N.J. Court Rules, Appendix to R. 3:28 at 1019 (2008) (hereinafter Guidelines). According to the Criminal Division Manager, under Guidelines 3(i)(2), "t]he discovery package indicates numerous jurisdictions were involved and the total amount of deposits made by the defendant from fraudulent rebates was in excess of $90,000.00." Noting that PTI is ordinarily denied in such a situation, the Criminal Division manager found no compelling circumstances to otherwise justify defendant's admission. On April 27, 2006, the Prosecutor rejected defendant's application for substantially the same reasons.

Defendant appealed the denial decision to the Law Division where, following argument, the judge declined to admit defendant to PTI over the Prosecutor's objection, reasoning:

Basic facts; the Defendant had obtained money through fraudulent rebate creations that he used for at least 45 companies over many jurisdictions. He utilized two different banking systems and the activity was over a lengthy period of time. The indictment was from June of 2004 to February 2006. The State does allege, on his arrest the Defendant gave an oral statement indicating that he had begun to make rebates in 2001.

Here, in reviewing all of the guidelines and so forth, the guideline through I-2 expresses a rebuttable presumption against PTI if a crime constitutes a continuing criminal enterprise and obviously, this was a continuing enterprise of a criminal nature. The -- so there's even enhanced deference given to the prosecutor's discretion.

I still am unable to find that the State's rejection was a patent and gross abuse of discretion and based upon that, the Court does deny the motion . . . of the defense . . . to have the ...


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