On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-07-0487.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges Grall and Skillman.
Defendant was indicted for theft, in violation of N.J.S.A. 2C:20-3(a). The theft consisted of defendant's embezzlement from his employer, Strauss Discount Auto, of $48,755 over a nine-month period.
Defendant applied for admission into the pretrial intervention program (PTI). The prosecutor rejected defendant's application, giving the following reasons for this decision:
. . . Between the dates of August 1, 2008 and April 30, 2009 defendant working in his capacity as an Assistant Manager at Strauss Discount Auto stole $48,755.00 from the business. Defendant took money from Strauss Discount Auto by manipulating the "Safefund System" which is the computer monitoring and accounting program linked to all the cash registers inside the business. Defendant manipulated the "Safefund System" to "back-pay" the safe when he cashed out his employees at the end of their shifts. Defendant was able to manipulate the "Safefund System" as he was familiar with specific password and user-level operational procedures. Defendant gave a post-Miranda statement admitting to the theft based on the facts that he had mounting debt and bills, and saw the "back-pay" manipulations as a way to pay his bills. Defendant also admitted to have a gambling and a porn/sex addiction and readily admitted to using the monies he gained from Strauss Discount Auto to feed these addictions.
The State objects to defendant's admission into the program pursuant to R. 3:28, guideline 3 and N.J.S.A. 2C:43-12(e). Defendant committed multiple illegal acts over the course of nine months. His concerted efforts to manipulate the computer system at Strauss Discount Auto in order to pay his bills, and fund his gambling and porn addictions are evident. . . .
Therefore, the nature of this offense, the facts of this case and defendant['s] pattern of antisocial behavior indicate that he is not an appropriate candidate for the Pre-Trial Intervention Program. N.J.S.A. 2C:43-12e(1), (2) and (8).
Additionally, defendant's motivation for engaging in this activity is of concern and demonstrates his intent to continue engaging in criminal activity. N.J.S.A. 2C:43-12e(3).
Defendant appealed this rejection to the trial court, which affirmed the prosecutor's decision, stating that defendant's embezzlement of his employer's money constituted "a clear continuing pattern of criminal activity," and therefore, the prosecutor's rejection of defendant's application for admission into PTI did not constitute "a patent and gross abuse of discretion."
Defendant then pled guilty pursuant to a plea bargain under which he would be sentenced to a 180-day suspended sentence and placed on probation conditioned upon him performing 50 hours of community service and paying $48,755 in restitution to his former employer. The trial court accepted the plea bargain and sentenced defendant to a three-year probationary term, subject to the agreed upon conditions.
On appeal, defendant presents the following argument:
THE PROSECUTOR'S DECISION TO REJECT DEFENDANT'S PTI APPLICATION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION WHERE THE PROGRAM DIRECTOR RECOMMENDED ADMISSION, AND THE PROSECUTOR FAILED TO ...