On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 06-06-1361.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Alvarez.
On June 26, 2006, a Monmouth County Grand Jury returned an indictment charging defendant, Salvatore Vitale, with third-degree simulation of a motor vehicle insurance identification card, N.J.S.A. 2C:21-2.3a (Count One), and fourth-degree simulation of a motor vehicle insurance identification card N.J.S.A. 2C:21-2.3b (Count Two). Although the Pretrial Intervention Program (PTI) Supervisor "cautiously recommended" defendant's acceptance as an appropriate candidate for admission to PTI, the Attorney General's Office rejected defendant's application. Defendant appealed the rejection and the Law Division judge, over the State's objection, admitted defendant into the program. The State appeals and we reverse.
The facts are undisputed. At the time of the offenses, defendant was the Chief Executive Officer (CEO) and President of the New Jersey Exchange Insurance Company, a company authorized to write commercial automobile insurance policies for taxicabs. On August 19, 2004, defendant's son was stopped while operating defendant's 1996 Chevrolet in Englishtown. Because defendant's son was unable to produce a valid insurance card for the Chevrolet, he was instructed to produce proof at police headquarters within twenty-four hours. The following day, defendant presented a false insurance card purportedly issued by the New Jersey Insurance Exchange. On the same day, defendant was stopped driving his leased Mercedes. The car was impounded because he could not produce a valid insurance card. A few hours later, defendant presented a false insurance card for the Mercedes, purportedly issued by Allstate Insurance Company. Defendant was charged with the two subject offenses after it was discovered that the insurance cards presented were counterfeit.
Recommending enrollment in PTI, the Monmouth County PTI Supervisor made the following comments:
The defendant is a 53 year old married male making an application for the diversionary program.
Aside from experimental use of alcohol, the defendant denied having any history involving illicit substance usage.
The defendant reported that he is a college graduate who has built a career within the insurance industry. Unfortunately, his misuse of his authority while operating as CEO of the NJ Exchange Insurance Company contributed to his involvement in the present offense.
The defendant failed to admit any wrongdoing in the present offense, and he misused his position of authority in an attempt for personal gain. A criminal check revealed no prior arrests for the defendant. The dilemma remains whether or not the defendant would be a suitable candidate for the program. The defendant was afforded a position of authority and allowed poor judgment to step in and destroy whatever opportunities the government afforded him. DAG Frank Holstein objects to the defendant being admitted in to the diversionary program and stated that his actions should not be overlooked.
Whether poor judgment or negligence, the defendant allowed himself to get involved in a situation that could've been avoided. He stated that he is presently working for another insurance company in New York and it is not certain, if his position at that company would pose another threat for the defendant to fall prey to poor judgment, if he is ever faced with a similar dilemma. It is cautiously recommended that the defendant receive the opportunity to receive PTI.
The State opposed defendant's enrollment essentially asserting: (1) the PTI supervisor's recommendation was devoid of any discussion of conditions or personal problems leading to defendant's commission of the offense; (2) defendant minimized his role by stating to the PTI officer that the "fraudulent insurance card [arrived] at the police station;" (3) defendant's statement to the PTI official that "he is presently working for another insurance company in New York and it is not certain, if his position at that company would pose another threat for [him] to fall prey to poor judgment," shows that defendant is not committed to the rehabilitation under the PTI program; (4) as an individual involved in the insurance industry defendant was aware of the risk involved in driving without insurance coverage; (5) as in insurance company official defendant breached his fiduciary duty and violated public trust because only agents and insurance company officials are permitted to issue insurance identification cards; (6) counterfeiting two different insurance cards within a twenty-four hour period bespeaks a willingness by defendant to engage in repetitive efforts to deceive the police; (7) defendant's age, education, and training indicates that he participated in the offense knowing the risks, rather than due to a mistake of judgment; and (8) societal needs, including the prevention of insurance fraud, requires assurance that offenses such as these committed by insurance officials not be tolerated.
In determining that the Attorney General's denial of defendant's application was a patent and gross abuse of discretion, the ...