July 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KWABENA BOAKYE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-10-0724.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2011
Before Judges A. A. Rodriguez and Sabatino.
Plaintiff, Kwakena Boakye, was charged with third-degree theft by deception, N.J.S.A. 2C:20-4. The basis of the charge is an allegation that he used a credit card issued to his employer for personal purchases of gasoline. According to the indictment, this occurred on numerous occasions between December 2007 and July 2008. Moreover, it is alleged that he also allowed his brother to make purchases with the employer's credit card. He applied to the Somerset County Pre-Trial Intervention program (PTI). The PTI director determined that defendant was not an acceptable candidate for PTI. His application was rejected by the Somerset County Prosecutor. The prosecutor reasoned that Guideline 3(i)(2) of Rule 3:28, foreclosed defendant's participation in PTI because the offense was part of a "continuing criminal business or enterprise, and therefore, under the Guideline, PTI "generally should be rejected."
Defendant challenged this rejection. Judge Edward M. Coleman upheld the prosecutor's decision. Thereafter, defendant pleaded guilty to the charge. In exchange, the State agreed to a probationary sentence, conditioned upon payment on $1,841.60 restitution and performance of seventy-five hours of community service. The judge imposed a three-year probationary term, as well as payment of $1,841 in restitution and other conditions.
On appeal, defendant contends:
THE PROSECUTOR'S DENIAL OF DEFENDANT'S APPLICATION FOR PRETRIAL INTERVENTION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION WHERE REJECTION WAS BASED ON AN INAPPROPRIATE FACTOR.
We reject this contention. N.J.S.A. 2C:43-12 and Rule 3:28, with its accompanying Guideline 8, set out the "purposes, goals, and considerations relevant to PTI." State v. Negran, 178 N.J. 73, 80 (2003) (internal quotation marks omitted). PTI serves both prosecutors and applicants in that it augment[s] the options of prosecutors in disposing of criminal matters . . . [and it] provide[s] applicants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant. [Ibid. (internal quotation marks omitted).]
Admission into PTI requires a positive recommendation from the PTI director and the consent of the County Prosecutor. Negran, supra, 178 N.J. at 80; State v. Nwobu, 139 N.J. 236, 246 (1995). "Admission determinations are primarily individualistic in nature and a[n administrator and] prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Negran, supra, 178 N.J. at 80. (internal quotation marks omitted).
Because the prosecutorial function is reserved to the executive branch, once a prosecutor has determined not to consent to a defendant's application to a diversionary program, that decision is to be afforded enhanced or extra deference. State v. DeMarco, 107 N.J. 562, 566 (1987). Judicial review of a prosecutor's decision is severely limited "to check only the most egregious examples of injustice and unfairness." Ibid. Therefore, "[a]bsent evidence to the contrary, it is [to be] presumed that the prosecutor considered all relevant factors before rendering a decision." State v. Dalglish, 86 N.J. 503, 509 (1981). However, a prosecutor's discretion in respect to a PTI application is not without limits. State v. Brooks, 175 N.J. 215, 225 (2002).
A defendant attempting to overcome a prosecutorial veto 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." Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993) (internal quotations omitted)) (internal quotations omitted). That standard, which governs our review here, requires the following showing:
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. [State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]
Here, the judge followed these principles in denying defendant's challenge to the Prosecutor's denying PTI. See generally Nwobu, supra, 139 N.J. 236. The evidence presented to the Grand Jury clearly supports the Prosecutor's conclusion that defendant was involved in a continuing criminal enterprise. Allegedly, defendant used his employer's credit card without authorization over sixty times. It was his arrest that ended the continuing theft episodes.
Defendant's claim that Guideline 3(i)(2) is inapplicable because he acted simply in furtherance of his own criminal interests, and not in concert with others, is belied by the fact that on several occasions he used his employer's credit card to purchase gasoline simultaneously for both himself and his brother. Cf. State v. Watkins, 193 N.J. 507, 519-27 (2008) (explaining the elements of Guideline 3(i)(2)).
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