May 9, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-08-00551.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 15, 2011
Before Judges Wefing, Baxter and Koblitz.
Defendant J.F.P. appeals his April 16, 2010 conviction of third-degree issuing a bad check, N.J.S.A. 2C:21-5, after pleading guilty to the only count of Somerset County Indictment No. 07-08-00551. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for reconsideration of defendant's termination from the Pre-trial Intervention (PTI) Program.
A Somerset County Grand Jury indicted defendant on August 8, 2007, alleging in one count that on November 8, 2005 and November 20, 2005, defendant issued two checks for $1435.50, knowing they would not be honored. The State informed us in its brief that on November 8, 2005, defendant issued a check to Bobcat of Central Jersey (Bobcat) to pay for equipment rentals. He wrote on the check, in the memo section, "November 1/2 Payment." The check was returned for insufficient funds on November 18, 2005. Another check submitted by defendant to Bobcat in the same amount on November 20, 2005, was not honored because it was drawn on a closed account. He wrote on that check "November 2nd 1/2 Payment."
Defendant was admitted into PTI on December 19, 2007. As special conditions of PTI, he was ordered to perform fifty hours of community service and to pay restitution to Bobcat in the amount of $2871, a $50 PTI enrollment fee pursuant to N.J.S.A. 2C:43-3.1(2)(d) and a $75 Safe Neighborhood Assessment pursuant to N.J.S.A. 2C:43-3.2a(2), totaling $2996 in payments.
On October 17, 2008, the Somerset County Probation Department recommended a second twelve-month postponement in a memorandum, which provides in its entirety:
On 12/19/07, the above named defendant was placed in the Pretrial Intervention Program for the charge(s) of Bad Checks over $200-Knowing. The defendant has reported as directed, completed his 50 hours of Community Service, and [is] working full time. The defendant tested negative for all random urine/oral swab specimen[s] while pending these charges. The defendant has a significant balance remaining of $1,175.00. Therefore, it is respectfully recommended that the defendant be granted a 2nd postponement of 12 months to allow him to pay his monies in full.
An order of postponement was signed by the court on October 27, 2008.
A notice of intent to terminate PTI was sent December 31, 2008, and on February 2, 2009, after a hearing, defendant was terminated from the program for failure to report, failure to follow through on substance abuse treatment and failure to make timely restitution payments. On April 9, 2009, defendant pled guilty to the one-count indictment.
Defendant then obtained new counsel who sought reconsideration of defendant's PTI termination by the judge who accepted defendant's guilty plea, not the judge who conducted the original termination hearing. This motion was denied. Defendant was sentenced on April 16, 2010, to two years of probation, seventy-five hours of community service and payment of the balance of the restitution owed to Bobcat, as well as the mandatory penalties including another $75 Safe Neighborhood Assessment. The court indicated it would "consider early termination from probation at/after 12 months provided fees and restitution [are] paid in full."
On appeal defendant raises the following issues,
THE STATE HAVING WAITED SO LONG TO BRING THE INDICTMENT, WITHOUT ANY EXPLANATION, VIOLATED DEFENDANT'S DUE PROCESS RIGHTS. POINT II THE COURT FAILED TO GIVE PROPER WEIGHT THROUGH A FULL HEARING AS TO PROBATION SUPERVISOR AND OFFICER ROBERT MCGINLEY'S MEMORANDUM TO THE COURT TO REINSTATE THE DEFENDANT TO PTI AFTER PROBATION MISTAKENLY RECOMMENDED TERMINATION.
POINT III DEFENDANT'S ATTEMPTS TO MAKE FULL RESTITUTION IN THIS MATTER AND PTI INABILITY TO ACCEPT PAYMENT SHOULD NOT NOW BE USED TO DISQUALIFY HIM FROM PTI.
In Point I of his brief, defendant argues that the delay between his issuance of the checks in November 2005 and the indictment on August 8, 2007, as well as the delay between the indictment and plea, violated his Sixth Amendment due process rights, as well as the time frames and procedures set forth in Rule 3:9-1.
In State v. Townsend, 186 N.J. 473 (2006), our Supreme Court held that a defendant alleging a due process violation based on pre-indictment delay has the burden of showing that "(1) the State's delay in seeking an indictment was a deliberate attempt to gain advantage over [the defendant], and (2) the delay caused defendant actual prejudice in his ability to defend the charge." Id. at 489 (citing United States v. Gouveia, 467 U.S. 180, 192, 104 S. Ct. 2292, 2299, 81 L. Ed. 2d 146, 157 (1984)). We previously recognized in State v. Aguirre, 287 N.J. Super. 128, 132-33 (App. Div.), certif. denied, 144 N.J. 585 (1996), that it is "perfectly legitimate" for the prosecution to delay an indictment "to gather additional evidence against an accused or to broaden the investigation," and that prosecutors "should not be discouraged from thoroughly investigating possible crimes, particularly those involving multiple participants or multiple transactions." See also United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2049-50, 52 L. Ed. 2d 752, 759-61 (1977).
A defendant must show, "actual prejudice, not possible or presumed prejudice," to support a due process claim. State v. Alexander, 310 N.J. Super. 348, 355 (App. Div.) (quoting Aguirre, supra, 287 N.J. Super. at 133), certif. denied, 156 N.J. 408 (1998). "'Vague assertions of lost witnesses, faded memories, or misplaced documents are insufficient to establish a due process violation from pre-indictment delay.'" Alexander, supra, 310 N.J. Super. at 355 (quoting United States v. Beszborn, 21 F.3d 62, 67 (5th Cir.), cert. denied, sub. nom. Westmoreland v. United States, 513 U.S. 934, 115 S. Ct. 330, 130 L. Ed. 2d 288 (1994)); see also State v. Rodriguez, 112 N.J. Super. 513, 516-17 (App. Div. 1970) (rejecting the defendant's contention that he was unduly prejudiced by his failure to remember his activities on the critical dates that he sold marijuana to an undercover agent), certif. denied, 61 N.J. 156 (1972).
Defendant notes in his certification in support of his motion to reconsider his termination of PTI, the "emotional strain . . . affecting his marriage, his ability to work and his ability to defend" caused by the delay. He points to no "actual prejudice."
The State maintains the following facts, based on documents attached to its brief. After unsuccessful attempts by Bobcat to collect, the matter was referred to the Green Brook Police Department on January 23, 2007. The police also made efforts to collect restitution from defendant, preferring to handle the matter informally. Although defendant gave the Green Brook police money orders totaling $1450, the police returned the money orders to defendant as being insufficient restitution. A criminal complaint was then signed on July 3, 2007, and defendant was indicted the following month. Thus, the pre-complaint delay was due to an attempt by the police to resolve the situation without criminal repercussions for defendant.
The post-indictment delay was attributable to defendant's admission to and subsequent termination from PTI. Defendant voluntarily entered into the PTI program, a program intended to benefit defendants by offering rehabilitation without a resulting criminal record. See Pressler & Verniero, Current N.J. Court Rules, Guideline 1 on R. 3:28 (2011). A substitution of defense counsel, as well as various defense motions including a motion for leave to appeal, further delayed the ultimate disposition. The statute of limitations for this third-degree crime is five years. N.J.S.A. 2C:1-6b(1). The criminal complaint was signed twenty months after the checks were negotiated, and defendant was indicted one month later. Defendant spent no time incarcerated during this process nor can he point to any difficulty in defending against the charge due to the delay. See State v. Long, 119 N.J. 439, 470-71 (1990) (finding no speedy trial violation because there was "no indication that the prosecution intentionally delayed the proceedings to gain an unfair, tactical advantage"), superseded by statute on other grounds, N.J.S.A. 2C:11-3i. Time elapsed here only as a result of efforts by the police, State and probation department to assist defendant to avoid a criminal record. We therefore reject the argument defendant advances in Point I.
In Point II of his brief, defendant argues that the court did not give sufficient weight to the Somerset County Probation Department memorandum to defense counsel of July 15, 2009, more than five months after defendant received a summary PTI termination hearing as required by statute. N.J.S.A. 2C:43-13e. This memorandum indicates that probation would have no objection to reinstating [defendant's] PTI status provided your client pays off his restitution and fines forthwith in full through a money order. It should be noted that the 1st Asst. Prosecutor . . . is opposed and will object to reinstatement. In that the Prosecutor's Office is opposed to reinstatement the Probation Department will leave it to the discretion of the court.
In this memorandum, the probation department clearly defers to the discretion of the court and acknowledges the disagreement of the prosecutor. In general, the prosecutor has a greater voice in PTI admissions than the program director or probation. State v. Burbano, 304 N.J. Super. 215, 221-22 (Law Div. 1996); see State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (prosecutor's decision not to consent to PTI is entitled to "enhanced deference"); see also State v. Nwobu, 139 N.J. 236, 246, 253 (1995); State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980).
After defendant's termination from PTI in February 2009 and after he entered a guilty plea in April 2009, defendant sought to vacate the PTI termination and also sought other relief.*fn1 The court denied defendant's application because it lacked jurisdiction, reasoning that Rule 3:28 does not provide defendant with the right to appeal a PTI termination to the Law Division. See State v. Moraes-Pena, 386 N.J. Super. 569, 578 (App. Div.) (holding that after a guilty plea, an initial denial of PTI must be appealed to the Appellate Division because "[Rule 3:28] does not contemplate further proceedings at the trial level after a guilty plea is entered."), certif. denied, 188 N.J. 492 (2006). If defendant sought reconsideration of the termination decision, he should have brought that motion before the original judge prior to pleading guilty and within twenty days of termination from PTI. R. 1:7-4. We therefore reject defendant's argument that the court erred when it refused to vacate his PTI termination.
Defendant argues that he should not have been terminated from PTI because, among other reasons, the program director did not have the authority to require defendant to attend a drug evaluation and subsequent rehabilitation. The director clearly does have that authority. See Pressler & Verniero, Current N.J. Court Rules, Guideline 8 to R. 3:28 (2011). Defendant argues that he did not receive notice of reporting dates after he learned PTI would be extended. However, defendant did not respond to probation's attempts to contact him by phone to inform him.
Defendant argues also that his inability to make full restitution should not be used as a reason to terminate him, based on PTI Guideline 3(k), State in Interest of D.G.W., 70 N.J. 488 (1978) and State v. Harris, 70 N.J. 586 (1976). Defendant's failure to complete payment was the reason his PTI involvement was extended and was one of the three reasons listed on the notice of intent to terminate. The court that heard the termination hearing, however, did not base its decision to terminate on defendant's failure to make full restitution, finding to the contrary that defendant "was paying money but not showing up for review [or] supervision, and [was] not going to treatment."
Although not raised by defendant, we note a factual ambiguity in the record concerning the proper amount of defendant's restitution. At oral argument, the State represented that the second check written by defendant was issued to replace the first. The timing of the second check, two days after the return of the first check for insufficient funds, seems to support that interpretation. The indictment charged defendant in only one count for writing both checks. However, the notations on the two checks are ambiguous. The second check could be a proffer of payment of the second half of the amount due or an attempt to replace the first check which was not honored. Defense counsel, in her brief, indicates that Bobcat has a civil judgment against defendant of $15,000. Thus, defendant clearly owed Bobcat more than the sum of the two checks.
Restitution, whether through PTI or after sentencing, should encompass the harm done by the criminal behavior and not any additional debt owed by defendant. Only the amount defrauded by use of the two dishonored checks should be collected by the criminal justice system. Thus, if, as the State represented, defendant issued the second check to cover the first check, his restitution should have been set at $1435.50 rather than $2871. Had the lesser amount been set, defendant would have completed his payments and been discharged from PTI without the extension of PTI and prior to the notice of termination.
We thus remand for the court to reconsider defendant's termination from PTI. The court should determine, if it is disputed, whether or not the second check was written to replace the first. If it was, the court should then determine whether or not to dismiss the indictment, given defendant's full payment of restitution and performance of community service before the PTI termination process began.
Reversed and remanded.