On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-07-0521.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2009
Before Judges Rodríguez and Reisner.
Following the rejection of her application to the pre-trial intervention program (PTI), defendant Marilyn Soto-Gonzalez pled guilty to third-degree theft by deception, N.J.S.A. 2C:20-4. She was sentenced on May 22, 2008 to three years probation, psychological evaluation and treatment, restitution of $30,000, and associated fines and fees. She now appeals from the trial court's order dated November 8, 2007 denying her appeal from rejection to the PTI program.
Defendant was indicted for theft by deception in connection with a scheme by which she set up phony pay-pal accounts on a computer at her work place, and, through those accounts, used her employer's funds to purchase goods on E-Bay. Using a false name, she also purchased furniture over the internet and did not pay for it. In two separate indictments, she was accused of the theft of $6500 worth of furniture from the internet seller, plus the theft of $57,000 from her employer.
Defendant, then age thirty-five, applied for PTI, based on her lack of any prior criminal record. The Criminal Division Manager initially approved the application. However, on July 20, 2007, the prosecutor rejected the application, concluding that defendant had committed numerous internet-related thefts while at work in her employer's finance department, and that her conduct constituted "a continuing pattern of anti-social behavior." N.J.S.A. 2C:43-12e(8). The victims were seeking prosecution and had not received full restitution. Based on defendant's lack of an explanation when she was caught, the prosecutor reasoned that the crimes appeared to be motivated by "greed" rather than by any condition that required treatment.*fn1
The prosecutor concluded that the public benefit from deterrence outweighed "the defendant's personal desire for PTI." The Criminal Division Manager subsequently reconsidered his earlier decision and rejected plaintiff's application on September 11, 2007.
In a comprehensive oral opinion placed on the record on November 8, 2007, Judge Marino denied defendant's PTI appeal, concluding that the prosecutor's decision to reject defendant from PTI was not a patent and gross abuse of discretion:
The facts of this case are that the Defendant was a trusted employee who misused the financial information of her employer. The Defendant was given access to and did misuse the financial and bank account information belonging to [her employer] to commit the crimes over the Internet while at work . . . .
Under the circumstances of this case, the public benefits from general and specific deterrence outweigh the Defendant's personal desire for P.T.I.
Therefore, the County Prosecutor's rejection on that basis cannot be said to be a patent and gross abuse of discretion . . . .
At the oral argument of the PTI appeal, defendant's attorney represented to the court that defendant had suffered a stroke and was suffering from severe depression at the time she committed the crimes. Counsel also claimed that his client was duped into committing her crimes by someone she met over the internet. However, in her opinion, the judge noted that defendant had not presented the prosecutor with that information in her PTI application. The record ...