October 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
CHRISTINA RINALDO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-08-00590-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2009
Before Judges Cuff and Waugh.
The State appeals the Law Division's order admitting defendant Christina Rinaldo into the Somerset County Pretrial Intervention (PTI) Program over the objection of the Somerset County Prosecutor. We reverse.
Rinaldo was charged in a three count indictment with third-degree fraudulent use of a credit card, contrary to N.J.S.A. 2C:21-6(h) (count one); fourth-degree credit card theft, contrary to N.J.S.A. 2C:21-6(c)(1) (count two); and third-degree theft by deception, contrary to N.J.S.A. 2C:20-4. The indictment was based upon Rinaldo's repeated, unauthorized use of her then boyfriend's credit card on seventy-seven occasions over a three-month period. She made a total of $5,023.75 in unauthorized purchases. In order to hide her use of the card, Rinaldo removed the credit card bills from the victim's mailbox.
The victim reported the unauthorized usage to the police in January 2008, after he received the first bill following the termination of his cohabitation with Rinaldo. The police attempted to contact Rinaldo, who then contacted the victim and promised to reimburse him for the charges. Based upon her promise, he did not press charges. In May 2008, having received no payments from Rinaldo, the victim again contacted the police. The police interviewed Rinaldo, who waived her Miranda*fn1 rights and admitted to the facts set out above.
Rinaldo applied to the PTI program on September 12, 2008. She was rejected on September 23, 2008. The following reasons for her rejection were given on a pre-printed form:
The crime or crimes defendant is charged with constitute part of a continuing pattern of antisocial behavior or the defendant has a record of criminal and penal violations and presents a substantial danger to others. N.J.S.A. 2C:43-12(e)(8); N.J.S.A. 2C:43-12(e)(9).....
The defendant would not be benefited by supervisory treatment-his/her crime is related to a condition or situation that likely could not be corrected through supervisory treatment. N.J.S.A. 2C:43-12(e)(6); see also N.J.S.A. 2C:43-12(e)(5).
The prosecutor concurred in the recommendation of the PTI director, without any elaboration.
Rinaldo appealed to the Law Division. After hearing oral argument, the motion judge granted the appeal and ordered Rinaldo's admission to the PTI program. After setting out the background facts and arguments of the parties, the judge explained his reasons as follows:
This is a P.T.I. appeal. There [are] some limitations with regard to the Court's review as indicated in State v. Leonardis, 73 N.J. 360[, 381 (1977)]. The Trial Court's required to afford great deference to the Prosecutor with regard to the decisions. This is enhanced deference as indicated in State v. Craft, 265 N.J. Super. 106[, 111 (App. Div. 1993)], and also State v. Nwobu, [139 N.J. 236, 246 (1995),] that the rejection -- the defense in order to win this application must show by clear and convincing evidence that the Prosecutor's refusal is a patent and gross abuse of discretion. Frankly, I do find that the State's refusal to allow the Defendant into the program is a patent and gross abuse of discretion.
I understand that the Court's required to give enhanced deference to the Prosecutors with regard to this program, but here we have extenuating circumstances that were clearly not taken into consideration by the State in their rejection for the program.
Namely that this was not a stranger to stranger crime. This was two people who were involved in a relationship, living together at the time of the events, and obviously criminal behavior by the Defendant. But we have a Defendant who is relatively young, who has no criminal record, and who given the opportunity, and I'm not saying she hasn't had the opportunity, she has, and I agree that I haven't even seen a good faith effort in that she has failed to come up with even a thousand dollars to show good faith and make restitution.
But I'm also satisfied that placing her under a supervision program and requiring her to meet the conditions of that supervision, namely an appropriate monthly payment plan, would be more appropriate than a criminal prosecution under the circumstances of this case.
We've indicated these are two people who live together, share expenses within that household, and obviously unbeknownst to the victim, she was running up credit card bills that were totally inappropriate.
But I do find that the State's abusing their discretion in just flat-out rejecting merely because this happened on 77 separate occasions. I find that that's insufficient reason for the rejection. They don't even point to any of the other factors with regard to the Defendant to demonstrate why participation in the program would be inappropriate.
It's flat out, well, you did it 77 times and therefore you don't get in. So, I agree with the defense that the Defendant should be allowed in and the defense can prepare an order to that effect.
This appeal followed.
Judicial review of decisions to reject applications for PTI is "severely limited," State v. Nwobu, 139 N.J. 236, 246 (1995), serving to "check only 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)). To set aside a prosecutor's rejection, a defendant must clearly and convincingly establish that the prosecutor's decision constituted "a patent and gross abuse of his discretion." State v. Watkins, 193 N.J. 507, 520 (2008); State v. Dalglish, 86 N.J. 503, 509 (1981). A party must show that the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a "clear error in judgment." Nwobu, supra, 139 N.J. at 247; State v. Bender, 80 N.J. 84, 93 (1979). A rejected applicant may also satisfy this heavy burden by showing that the prosecutor's error "will clearly subvert the goals underlying Pretrial Intervention." Bender, supra, 80 N.J. at 93.
In overturning the prosecutor's rejection, the motion judge focused on only one of the two reasons given for rejection, i.e., the continuing pattern of anti-social behavior. While there was only one credit card involved, it was used extensively and there was a conscious effort by Rinaldo to avoid detection by the victim. The judge also pointed to the fact that Rinaldo and the victim knew each other, such that this was not a "stranger-to-stranger" crime. While true, we do not agree that Rinaldo is helped by those facts. Indeed, they demonstrate that she abused the victim's trust in taking his credit card and using her access to the mailbox to hide her repeated, unauthorized use of the card.
The motion judge did not specifically address the second reason for rejection, that Rinaldo would not benefit from supervisory treatment. There is support for that position in the record, based upon Rinaldo's failure to keep her promise that she would repay the victim. In essence, the victim's willingness to refrain from pressing criminal charges because Rinaldo promised to reimburse him was an informal PTI program.
Rinaldo utterly failed to follow through on her promise, which led to the continued investigation and her indictment. As the motion judge pointed out, she had made no effort at restitution at the time of her appeal before the Law Division.
Because we find factual support in the record for each of the reasons underlying Rinaldo's rejection from the PTI program, we are unable to agree with the motion judge that there was "a patent and gross abuse of discretion." That is especially so because such an abuse of discretion must be established clearly and convincingly.
While Rinaldo correctly argues that the rehabilitation offered by a probationary sentence could be provided in the PTI program without the potentially serious implications of a criminal conviction, the fact remains that she has already had such an opportunity and failed to take advantage of it. Her argument also ignores the fundamental principle that the decision of whether to divert a defendant from the criminal process lies within the discretion of the prosecutor. Nwobu, supra, 139 N.J. at 246. However sympathetic we may be to Rinaldo's position, neither we nor the Law Division are free to substitute our judgment for that of the prosecutor under our stringent standard of review.
Consequently, we reverse the order on appeal and remand to the Law Division for further proceedings.