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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...