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State of New Jersey v. Michael Forschino


January 18, 2012


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-12-0902.

Per curiam.


Submitted October 17, 2011

Before Judges A. A. Rodriguez and Sabatino.

Defendant Michael Forschino appeals the trial court's order denying his admission to the Pretrial Intervention Program ("PTI"). We affirm.

These are the pertinent facts and circumstances. In November 2008, defendant was indicted and charged in Somerset County with computer theft, a second-degree offense. N.J.S.A. 2C:20-25b. The State's investigation showed that the theft occurred after defendant was terminated by his employer. Following his discharge, defendant gained unauthorized access several times to the employer's mainframe computer. Through that access, defendant electronically altered the time records of several employees, including himself. Fortunately, the employer detected the alteration before paying any unwarranted compensation or failing to pay compensation that had been rightfully earned by the employees in question.

When he was confronted by the authorities, defendant admitted to his wrongdoing after being provided with Miranda*fn1 warnings. He asserted that he changed the computer entries because he was angry at his employer for firing him and failing to pay him for certain vacation time.

After the indictment was issued, defendant filed for admission to the PTI Program. The county's PTI program director recommended that defendant's application be denied. In particular, the director noted that defendant's second-degree offense carried a presumption of imprisonment and that defendant failed to show compelling reasons to justify his admission to PTI in the face of such a serious crime. The county prosecutor concurred with the program director in opposing PTI.

Defendant moved before the trial court to reverse the denial of his admission to PTI. He emphasized that he had no prior criminal record and had been employed since graduating from high school. He also noted his relative youth, as he was age twenty-four at the time of the offense. He further noted that he had since obtained steady employment with a different employer as a manager of a retail store. Despite these assertions, the prosecutor opposed the motion and defendant's admission into PTI.

After hearing oral argument, the trial judge denied defendant's motion, concluding that "defendant has not established through clear and convincing evidence that the prosecutor's refusal to sanction admission into the PTI Program was based on a patent and gross abuse of discretion." Among other things, the judge noted that the PTI guidelines "make clear that individuals charged with second-degree crimes should be usually rejected from the program." The judge also credited the prosecutor's concern for the victims of the attempted computer theft and the overall need to prosecute such offenses.

Following the denial of his motion for reversal of the PTI rejection, defendant entered into a negotiated plea to a downgraded charge of third-degree computer theft. N.J.S.A. 2C:20-25a. He was sentenced to three years of probation, conditioned on a suspended thirty-day jail sentence, fifty hours of community service, and the payment of all appropriate fines and penalties. As part of defendant's plea he preserved his right to appeal the PTI denial.

On appeal, defendant urges that we reverse the trial court's decision because the State's denial of his entry into PTI allegedly represented a patent and gross abuse of discretion. We are not so persuaded.

Pursuant to N.J.S.A. 2C:43-12e, and as implemented in our criminal courts under Rule 3:28, PTI is a discretionary program. Admission into PTI requires a positive recommendation from the program director as well as the prosecutor's consent. State v. Nwobu, 139 N.J. 236, 246 (1995). The prosecutor's assessment is to be guided by seventeen factors enumerated in the PTI statute. N.J.S.A. 2C:43-12e(1)-(17).

In light of "the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, supra, 139 N.J. at 246). Such deference to the prosecutor has been described as "'enhanced' or 'extra'" in nature. Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)).

The scope of judicial review of a prosecutor's objection to a defendant's admission into PTI is therefore "severely limited." Ibid.; see also Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). As the Court observed in Negran, judicial review of PTI denials "serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); see also State v. DeMarco, 107 N.J. 562, 566 (1987). Hence, "[a] defendant attempting to overcome a prosecutorial veto [of PTI admission] must 'clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent.'" Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246).

We discern no such patent and gross abuse of discretion here. Although his trial counsel attempted to minimize defendant's wrongdoing by characterizing it as a mere "prank," the act of hacking into a business's computer and altering its personnel records is a serious matter. The State legitimately emphasized the importance of safeguarding personnel records and the need to deter others from similarly tampering with such records by electronic means.

Although we appreciate that defendant is a first-time offender and that he has shown remorse for his actions, he fails to demonstrate that the trial court erred in upholding the dual rejection of his PTI application by the program director and the prosecutor. The trial court had an ample basis to conclude that the rigorous criteria required for overturning a PTI denial were absent.


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