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State v. Schmoll

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Defendant placed into the Pre-Trial Intervention Program.

On appeal, defendant raises the following issues for our consideration:

I. This Court should reverse the decision below and grant the Defendant George Schmoll admission into the pretrial intervention program because the prosecutorial veto was based on a patent and gross abuse of discretion.

A. The prosecutor's decision to deny entry into the PTI program was not premised upon a consideration of all relevant factors.

1. Denying Mr. Schmoll's PTI is a patent and gross abuse of prosecutorial discretion when he is a prime candidate for PTI and fits within all five purposes of PTI.

2. The prosecutor failed to fully evaluate all seventeen criteria for PTI in rendering her refusal.

B. Alternatively, the prosecutor's decision to deny entry into a PTI program amounted to a clear error in judgment.

We have considered these arguments in light of the record and the applicable legal precedents and have found them to be unpersuasive.

Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999) (citing N.J.S.A. 2C:43-12(a)(1); R. 3:28; Guidelines 1(a), supra, at 1017). Admission to PTI is governed, in general, by both statute, N.J.S.A. 2C:43-12, and Rule 3:28. See Guidelines 1-8, supra,, at 1017-30. The scope of judicial review of a decision to reject a PTI application is "'severely limited,'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (citations omitted)), and interference in that decision by the courts is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

The standard to be applied by the courts in reviewing PTI decisions has been referred to as "'enhanced deference' or 'extra deference.'" State v. Baynes, 148 N.J. 434, 443 (1997) (quoting Nwobu, supra, 139 N.J. at 246 (citation omitted)). Moreover, the burden on any defendant who seeks to overturn the denial of a PTI application is particularly weighty. As our Supreme Court has held, a defendant seeking to overcome rejection from PTI must prove by clear and convincing evidence that the decision to reject his or her application was a "'patent and gross abuse of . . . discretion.'" Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246 (citation omitted)); see State v. Brooks, 175 N.J. 215, 225 (2002) (citation omitted).

In applying this test, the Supreme Court has noted that if a rejected defendant can prove that the decision "(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment[,]" then an abuse of discretion would "[o]rdinarily . . . be manifest." State v. Bender, 80 N.J. 84, 93 (1979). However, in order to raise that presumption to the level of a "patent and gross" abuse of discretion, the defendant must also prove that his or her rejection from PTI will "clearly subvert the goals" of the PTI program. Ibid. Similarly, our Supreme Court has held that it is appropriate to reverse a decision respecting PTI that "is contrary to the predominant views of others responsible for the administration of criminal justice . . . . [such that it is] clearly unreasonable so as to shock the judicial conscience . . . . [or that it] could not have reasonably been made upon a weighing of the relevant factors." Nwobu, supra, 139 N.J. at 253-54 (citations and quotations omitted).

Defendant's arguments are insufficient to meet these standards. In particular, he complains that the Prosecutor and the court relied exclusively on the nature of the crime, ignoring his amenability to rehabilitation, lack of prior conviction, and other positive attributes. We disagree. As is evident by his detailed submission to the motion court, the Prosecutor considered all applicable criteria of N.J.S.A. 2C:43-12(e). We are further satisfied that the motion judge correctly took all relevant factors into account as well, foremost amongst which were the nature, extent and duration of defendant's continuing pattern of anti-social behavior. See Caliguiri, supra, 158 N.J. at 36. Moreover, as previously noted, Guidelines 3(i)(2) creates a presumption against PTI if the crime, as here, relates to a criminal business, and where the Guidelines express a presumption of ineligibility, a defendant must show "compelling reasons" to be admitted to PTI. Nwobu, supra, 139 N.J. at 252-54; see also Baynes, supra, 148 N.J. at 451. This, defendant has failed to do.

The fact remains that defendant engaged in a systematic and deliberate scheme of fraudulent rebate creations to bilk a number of companies operating in multiple jurisdictions. It is no excuse, as defendant seems to suggest, that the targets of his fraudulent activities were large corporations, and given the ultimate cost to society, defendant's crimes can hardly be considered "victimless." Nor may defendant seek to justify his criminal behavior as simply counteracting the so-called deceptive consumer practices of his "victims." Indeed, such arguments call into serious question defendant's appreciation for the seriousness of his conduct and therefore his true amenability to rehabilitation, N.J.S.A. 2C:43-12(b).

Accordingly, we discern no error in the motion judge's conclusions and detect no "patent and gross abuse of discretion" in the decision of the Prosecutor to reject defendant from the PTI program.

Affirmed.

20071025

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