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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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