On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-09-1362.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges S.L. Reisner and Gilroy.
Defendant Teresa Laliberte pled guilty to third-degree identity theft, N.J.S.A. 2C:21-17a; third-degree fraudulent use of credit cards, N.J.S.A. 2C:21-6h; and third-degree theft by deception, N.J.S.A. 2C:20-4. She was sentenced to an aggregate term of four years probation, plus restitution. She appeals from the denial of her motion to be admitted to pre-trial intervention (PTI).
Defendant was indicted for fraudulently applying for credit cards in the names of two people, her former boyfriend and a friend of her son, for using the credit cards, and for stealing and using checks belonging to her former boyfriend. The Criminal Division Manager did not recommend admission into PTI, on the grounds that defendant had a pattern of criminal activity, that the victims opposed her entry into PTI, that the crime was a breach of trust, and that "[a] more intense form of supervision is needed for this defendant." The report noted that the "victims stated that their entire lives have been turned upside down due to the theft of identity and the fraudulent credit cards the defendant applied for and used without the victims' knowledge." One victim indicated that "her credit history has several blemishes that will take her a very long time to correct." The other victim indicated that "his home was almost lost because the mortgage was not being paid and all of the money [in] his bank account had been slowly withdrawn by the defendant."
The Prosecutor's Office did not consent to PTI for defendant because the crime was part of a "continuing pattern of anti-social behavior," the victims opposed PTI for defendant and her crimes had a substantial impact on their lives, defendant had an outstanding bench warrant, and defendant required more intensive supervision. In her appeal of the Prosecutor's decision, defendant contended that the outstanding municipal bench warrant dated back to 1992 and had been resolved, and that the "alleged victim" was defendant's estranged ex-fiancé.
At the hearing before Judge Ferencz, the Prosecutor conceded that the 1992 municipal charge was not relevant to the PTI determination except that defendant had not been forthcoming with the PTI program in failing to disclose it. In a thorough oral opinion, the judge reviewed the relevant factors under N.J.S.A. 2C:43-12e and concluded that the prosecutor's decision was not a patent and gross abuse of discretion. In particular the judge considered that the indictment charged defendant with numerous offenses, committed over a nine-month period. He considered that defendant applied for several credit cards in one victim's name, opened a bank account in the other victim's name, obtained credit cards in his name and stole his checks. He concluded that "[t]his is ongoing activity that is not isolated in nature." He considered the impact on the victims.
He also agreed that in view of the number of victims and the type of crimes committed, the State did not abuse its discretion in deciding "to make a clear statement that this kind of conduct can not be tolerated and is not conduct that is going to [lead to defendant being] accepted into a diversionary program."
On this appeal, defendant contends that the denial of her PTI application was a patent and gross abuse of discretion. Having reviewed the record, we are satisfied that defendant cannot satisfy that very demanding standard. Even discounting the municipal bench warrant, defendant committed several crimes of fraud against two different victims, causing them significant economic harm. This was not one isolated incident. Defendant stole the victims' identities, obtained and used credit cards in their names, and drained one victim's bank account. While she had no prior criminal record, her offenses in this case constitute a pattern of criminal conduct over a significant period of time. Defendant received a sufficiently specific statement of reasons from the Criminal Division Manager, the prosecutor, and the judge. We find no patent and gross abuse of discretion in the denial of her PTI application. See State v Nwobu, 139 N.J. 236, 247 (1995); State v. Leonardis, 73 N.J. 360, 382 (1977).
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