February 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM STEPHEN DEMKO, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-05-0367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Lisa, Baxter and Alvarez.
Defendant, William S. Demko, Jr., after entering an unconditional open guilty plea, appeals the denial of his motion to dismiss the indictment and the court's refusal to admit him into the Pretrial Intervention Program (PTI). For the reasons that follow, we affirm.
Defendant was charged in a two-count indictment with second-degree theft, N.J.S.A. 2C:20-3, and second-degree fencing/dealing in stolen property, N.J.S.A. 2C:20-7.1b. His application for PTI was rejected; he was not interviewed by the program administrators. Defendant's appeal from his PTI rejection was heard on December 11, 2007, as was his motion to dismiss the indictment. Judge Marino denied both applications.
On February 29, 2008, days prior to the start of his trial, defendant entered an open guilty plea to the indictment, in other words, without an agreement from the prosecutor as to sentence recommendations. On April 18, 2008, defendant was sentenced to five years imprisonment concurrent on both counts. Appropriate fines and penalties were imposed.
The charges stem from defendant's theft, between March 1, 2003, and March 12, 2007, of over 1300 key fobs from his employer, Adesa Auto Auctions (Adesa), and the sale of the fobs on eBay.*fn1 He employed two other men in the enterprise. When he provided the factual basis for his guilty plea, defendant estimated the value of the stolen merchandise at approximately $75,000. According to eBay's computer records, in the sixty days prior to his arrest alone, he sold $6299 worth of the items. At sentencing, Adesa requested restitution of $114,454.70, its estimated cost of replacing the key fobs before the cars were resold.
In his Mirandized*fn2 statements to police, defendant acknowledged stealing approximately 100 key fobs per week for the past two years, earning about $2000 monthly during that time. The presentence report indicated that a search of defendant's home after his arrest uncovered a cache of fobs worth approximately $137,550.
Defendant's motion to dismiss the indictment was premised on his claim that the State failed to present clearly exculpatory evidence to the grand jury in violation of the principles enunciated in State v. Hogan, 144 N.J. 216, 236-37 (1996). That case stands for the proposition that the State must include "clearly exculpatory" evidence, evidence which squarely "negates guilt," during a grand jury presentment. Id. at 237.
In support of his contention, defendant alleged that he removed fobs solely from vehicles intended for scrap metal, marked with the letter "C," meaning that the cars would be crushed or destroyed. Defendant thereby characterized the fobs as abandoned property, which had no value whatsoever to Adesa. The State countered that defendant did not raise this claim before the grand jury issued the indictment and that, in any event, the evidence was not clearly exculpatory. The State's investigation did not bear out defendant's factual assertions. Hence, the motion court determined that defendant's factual claim did not rise to the level of clearly exculpatory evidence that would refute an element of the offense, and accordingly denied the motion to dismiss the indictment. Moreover, the State could not be expected to have presented material to the grand jury that defendant claims is exculpatory if he had not yet submitted the proofs to the State.
Insofar as defendant's rejection from PTI, the court concluded that the nature of the offense, namely, "substantial second-degree theft and fencing charges," made him an inappropriate candidate pursuant to the PTI guidelines and applicable case law. In addition to the charges being second-degree offenses, which trigger a presumption against PTI admission, defendant did not marshal compelling information that would have overcome the presumption pursuant to State v. Nwobu, 139 N.J. 236, 252 (1995).
On appeal, defendant raises the following points:
POINT I - THE REQUIREMENT THAT THE DEFENDANT ENTER A CONDITIONAL PLEA PURSUANT TO R. 3:9-3(f) SHOULD BE WAIVED TO ALLOW DEFENDANT/ APPELLANT TO RAISE THE ISSUES PRESENTED IN THIS APPEAL.
POINT II - THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED; CLEARLY EXCULPATORY EVIDENCE WAS NOT PROVIDED TO THE GRAND JURY, AND NO RECORDS SUPPORTED THE STATE'S ALLEGATIONS OF AMOUNT OF LOSS.
POINT III - THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S APPEAL FROM THE REJECTION OF HIS PTI APPLICATION.
Defendant first urges that because his plea was open and neither called for a recommended sentence by the State nor carried a tentative indication from the court as to possible sentence, that Rule 3:9-3(f) should not bar consideration of whether his motion to dismiss the indictment should have been granted. Rule 3:9-3(f) states:
Conditional Pleas. With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea. Nothing in this rule shall be construed as limiting the right of appeal provided for in R. 3:5-7(d).
Rule 3:5-7(d) specifically provides that motions to suppress evidence, and for return of property, are always reviewable on appeal, notwithstanding an unconditional plea of guilty.
Rule 3:9-3(f) serves an important purpose, garnering the societal and administrative benefits of plea bargaining, while preserving a defendant's right to appellate review. See, e.g., State v. Diloreto, 362 N.J. Super. 600, 615-16 (App. Div. 2003), aff'd, 180 N.J. 264 (2004). Ordinarily, however, the failure to enter a conditional plea under subsection (f) bars appellate review of anything other than search and seizure issues. State v. Knight, 183 N.J. 449, 471 (2005); State v. J.M., 182 N.J. 402, 410 (2005). Exceptions are made in extraordinary circumstances, but nothing extraordinary has been suggested, much less established, in this case. See, e.g., State v. Gonzalez, 254 N.J. Super. 300, 304 (App. Div. 1992).
Because Rule 3:9-3(f) bars consideration of defendant's appeal from the denial of his motion to dismiss the indictment, we do not reach the issue on the merits. We note, however, that even if defendant had entered a conditional plea and preserved the issue for appeal, the record does not contain credible proofs establishing that key fobs were taken only from cars designated to be crushed as scrap metal. Without such proofs, the argument lacks merit in any event.
Second, defendant contends that the trial court should have admitted him into PTI. Pursuant to Rule 3:28(g), a defendant is always permitted to seek appellate review of denial into PTI notwithstanding an unconditional plea of guilty. Although procedurally we can consider the issue, it too lacks merit.
PTI "is a discretionary program diverting criminal defendants from formal prosecution." State v. Caliquiri, 158 N.J. 28, 35 (1999). The scope of judicial review of a decision to reject a PTI application "is severely limited." State v. Negran, 178 N.J. 73, 82 (2003). A defendant seeking to overcome rejection from PTI must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff'd, remanded by, 193 N.J. 507 (2008) (citations omitted). See also State v. Wallace, 146 N.J. 576, 582-83 (1996) (defining the abuse of discretion required as "a prosecutorial decision that has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention") (internal quotations and citation omitted). In State v. Bender, 80 N.J. 84 (1979), the Court elaborated on this patent and gross abuse of discretion standard:
Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention. [Id. at 93 (citation omitted).]
The customarily high standard is raised further in this case because defendant was charged with second-degree crimes. As the motion court correctly stated, the second-degree nature of the offense triggers a presumption against PTI. State v. Nwobu, supra, 139 N.J. at 252. In order to overcome that presumption, a "defendant must establish 'compelling reasons' for admission." Ibid. The showing defendant was required to make is more than his first-time offender status, and more than he "admitted or accepted responsibility for the crime." Ibid. To establish compelling circumstances, a defendant facing a second-degree offense "must demonstrate something extraordinary or unusual, something 'idiosyncratic,' in his or her background." Ibid. (citing State v. Jabbour, 118 N.J. 1, 7 (1990)). Judge Marino's decision took into account not only the nature of the offense but the fact it was a continuing criminal enterprise of at least two years duration. She correctly concluded that defendant did not present any reason, in law or fact, that would have mandated his entry into PTI. The record was devoid of compelling reasons which would overcome the presumption against admission.