July 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KAREN E. GOLDING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-05-0652.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011 -
Before Judges Payne and Hayden.
Defendant, Karen Golding, appeals from the February 23, 2010 judgment of conviction for fourth-degree stalking, arguing that she should not have been terminated from the Pre-Trial Intervention (PTI) program and her motion to vacate her guilty plea should have been granted. Having carefully considered the record and the applicable law, we affirm.
On February 6, 2006, as the result of a lengthy investigation, defendant was arrested after entering Joseph Cryan's car and charged with fourth-degree stalking, N.J.S.A. 2C:12-10(b) and third-degree burglary, N.J.S.A. 2C:18-2. On March 16, 2006, Judge John S. Triarsi, as a condition of bail, ordered defendant to have no contact with Cryan and three other people. Although the Union County PTI manager rejected defendant's application, on May 4, 2006, Judge Triarsi, with the consent of the State, granted defendant's motion to admit her into PTI for two years. As a condition of acceptance, the judge ordered defendant to continue psychological treatment and have no contact with Cryan and several other people.
On March, 28, 2007, defendant was charged in four criminal complaints with harassing four Cryan family members by calling them repeatedly on the telephone. On April 9, 2007, the matter was transferred to Morris County because one of the family members was married to a judge sitting in Union County. Defendant moved to be dismissed from PTI early due to what she considered her successful completion of the program, but the State opposed the motion as it planned to move to terminate PTI due to the new criminal charges.
On November 16, 2007, defendant appeared before Judge Salem Vincent Ahto and agreed to a consent order whereby the State agreed to extend PTI for another year, include the four new harassment charges in defendant's PTI program, and dismiss the third-degree burglary complaint with prejudice. In exchange, defendant agreed to enter a conditional guilty plea to the fourth-degree stalking accusation. Upon successful completion of PTI, the stalking conviction and the harassment charges would be dismissed. Defendant provided a factual basis for the stalking plea by admitting that between December 2005 and February 2006, she engaged in a course of conduct toward the female victim by phone and by mail, making statements that would cause a reasonable person to fear that someone was watching her and threatening her with bodily harm. In the consent agreement defendant also agreed to have no contact, including through third parties, with Cryan, some of his friends, and several members of his family. The order also required defendant to receive mental health counseling within thirty days.
In January 2009, the Morris County Probation Office notified defendant that she had failed to complete the court-ordered conditions and a termination hearing would be scheduled.
In April and May 2009, a five-day hearing was held before Judge Ahto on the proposed PTI termination. The State presented evidence at the hearing concerning several allegations of continued direct and indirect harassment of Cryan and his family. First, defendant had filed a judicial ethics complaint, eventually dismissed as unfounded, against a judge who was the husband of one of Cryan's sisters listed on the November 2007 no-contact list. Second, defendant filed three requests under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, with the Union Township Municipal Clerk's Office for the financial disclosure forms for about fifteen people, among them a municipal official who was another of Cryan's sisters. Next, defendant sought to obtain Cryan's prior email exchanges from both work and personal email accounts by asking a third party to file an OPRA request for the emails.
Additionally, defendant wrote a letter to then-Governor Corzine, dated November 5, 2008, in which she disclosed her personal relationship with Cryan and stated that he had caused her to suffer a "tremendous amount of abuse." Further, defendant failed to undergo long-term psychological treatment, which was a condition of PTI. Lastly, after having received notice of PTI termination proceedings, defendant wrote an email on March 10, 2009 to an attorney representing a defendant in a child pornography case, suggesting the defendant place some of the blame for his charges on Cryan, who had worked in the same office.
On May 11, 2009, the court terminated defendant from PTI after finding that defendant's continued violation of the no-contact order and her resistance to rehabilitation services showed that defendant was not fit to continue with the diversionary program. In November, defendant filed a motion to withdraw her guilty plea to fourth-degree stalking. After a hearing on December 23, 2009, Judge Ahto found that defendant had entered into the guilty plea voluntarily after a full explanation of the charges and had not made a colorable claim of innocence, and denied the motion.
On February 23, 2010, Judge Phillip J. Maenza sentenced defendant on the fourth-degree stalking conviction to two years probation conditioned on ninety days in the Sheriff's Labor Assistance Program. Defendant's motion to stay the sentence pending appeal was granted. Judge Maenza also ordered the Union County Prosecutor's Office to supply defendant with copies of the hard drives of her computers still in its possession, which defendant had sought prior to the PTI termination hearing. This appeal followed.
On appeal, defendant raises the following contentions for our consideration:
POINT I. DEFENDANT'S STALKING CONVICTION MUST BE VACATED BECAUSE [SHE] WAS NEITHER INDICTED NOR WAIVED HER RIGHT TO INDICTMENT FOR THIS OFFENSE.
POINT II. DEFENDANT'S GUILTY PLEA MUST BE VACATED BECAUSE SHE WAS REQUIRED, IN VIOLATION OF PTI GUIDELINE FOUR, TO ENTER A GUILTY PLEA TO FOURTH-DEGREE STALKING IN ORDER TO CONTINUE IN PTI.
POINT III. DEFENDANT WAS IMPROPERLY TERMINATED FROM PTI BECAUSE THE EVIDENCE DID NOT ESTABLISH A VIOLATION OF THE PTI CONDITIONS THAT WOULD WARRANT TERMINATION FROM THE PROGRAM.
POINT IV. DEFENDANT IS ENTITLED TO WITHDRAW HER GUILTY PLEA DUE TO THE STATE'S REFUSAL TO GRANT HER ACCESS TO HER COMPUTERS DURING THE PENDENCY OF THE PTI TERMINATION PROCEEDINGS. IN THE ALTERNATIVE, THIS MATTER SHOULD BE REMANDED FOR A NEW PTI TERMINATION HEARING SO THAT DEFENDANT CAN INTRODUCE EVIDENCE SUBSEQUENTLY RECOVERED FROM THE COMPUTERS.
Under the New Jersey Constitution a defendant has a right to be tried after an indictment, N.J. Const. art. I, Par. 8. However, a defendant can waive indictment and be tried on an accusation prepared by the prosecutor when he or she has been advised of his or her right to indictment and has waived that right in a signed writing. R. 3:7-2. Here defendant claims that she had not waived her right to indictment on the stalking charge, despite the accusation language to the contrary. As the State has not produced a written waiver signed by defendant, it appears that the specific waiver requirement in Rule 3:7-2 was not met.
Nonetheless, we do not perceive the lack of a written waiver to be fatal to the guilty plea herein. As the trial judge found in denying her motion to vacate the plea, defendant was questioned extensively about her understanding of the accusation to which she was pleading guilty and received sufficient notice of the stalking charge. Our Supreme Court, in addressing the requirement of a written waiver, held that Rule 3:7-2 was intended to provide notice to the defendant of the accusations against which he or she must defend. State v. Ciuffreda, 127 N.J. 73, 79-80 (1992). The Court concluded that requiring "an empty formality" of a written waiver would not further the purpose of Rule 3:7-2 when the defendant already had actual notice of the charges brought against him. Id. at 82. We are satisfied that defendant here had actual notice of the charges and is not entitled to vacate her guilty plea because she did not waive her right to an indictment in writing.
Furthermore, when, as here, the defendant sought the action in question in his or her own self-interest to create the possibility of a favorable outcome - such as to facilitate an extension of PTI rather than termination from the program for violating the no-contact requirements - defendant's procedural challenges after the fact are unpersuasive. See State v. Pena, 178 N.J. 297, 317-18 (2004). As we have previously held, a defendant cannot exploit the absence of a procedural safeguard when its omission was beneficial to the defendant. State v. Battle, 256 N.J. Super. 268, 282-83 (App. Div.), certif. denied, 130 N.J. 393 (1992).
In the present case, defendant, facing four new harassment criminal complaints and the possible discharge from the PTI program, had expressly agreed to plead guilty to the stalking accusation as a condition of extending the PTI term, adding the four new criminal charges, and dismissing the burglary charge with prejudice. Defendant now seeks to reverse the agreement, based on the absence of the formality of a written waiver, when it is no longer beneficial to her. We reject defendant's argument as she cannot request the court to follow a course of action and then, when it leads to an unfavorable outcome, condemn the procedure she sought by claiming error. See Battle, supra, 256 N.J. Super. at 282; see also State v. Ramseur, 106 N.J. 123, 282 (1987).
In a similar vein, defendant contends that her guilty plea should be vacated because the PTI Guidelines prohibit conditioning entry into PTI on a guilty plea. Nothing in the record indicates that the prosecutor conditioned entry into PTI on a guilty plea. In 2006, defendant was admitted into PTI without a requirement of a guilty plea, but in 2007 she was facing possible PTI discharge as well as the two 2006 criminal charges and the four 2007 harassment charges. As a result of a very favorable consent agreement, defendant was allowed to remain in PTI, have the additional charges added to the program and have the more serious 2006 charge dismissed with prejudice. There is no indication in the record that defendant did not enter into this favorable arrangement voluntarily.
PTI is a diversionary program designed to "augment the options of prosecutors in disposing of criminal matters . . . [and] provide 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." State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004). Under Rule 3:28, Guideline 4, enrollment in PTI programs may not be conditioned upon either informal admission or entry of a plea of guilt. However, we have previously held, where the prosecutor would have sufficient grounds to reject an application for PTI, the prosecutor's decision to require a conditional plea in a unique case was not an abuse of discretion. State v. Mosner, 407 N.J. Super. 40, 57 (App. Div. 2009). This was because the record contained "sufficient indicia that PTI was unlikely to result in any behavioral change, and that defendant's attitude is such that unconditional PTI would not achieve the purposes of the statute." Ibid. We are satisfied that Guideline 4 did not bar defendant's guilty plea as part of a consent agreement for continued PTI enrollment where the record shows that the defendant did not appear to be making the necessary behavioral changes to warrant staying in the PTI program. Moreover, defendant again asked the court to accept a course of action favorable to her and more than two years later, after receiving its benefits, claims error when the agreement is no longer beneficial to her. We reject this argument. See Battle, supra, 256 N.J. Super. at 282.
Defendant further argues that the evidence at the PTI termination hearing did not warrant termination from the program. We disagree.
PTI terminations are governed by N.J.S.A. 2C:43-13(e), which requires the court to determine after a summary hearing if the violation warrants dismissal from the program. In making the decision to terminate a defendant from PTI, the trial judge must exercise sound discretion to decide:
whether the failure to comply with the [PTI] condition . . . under the circumstances . . . supports the conclusion that termination of defendants' participation in the program is justified. The proof need not be established to any particular degree but must satisfy the judge in the exercise of sound discretion that the application to terminate is warranted. This requires a conscientious judgment which takes into account the particular circumstances of the individuals in deciding their fitness to continue within the diversionary program. [State v. Devatt, 173 N.J. Super. 188, 195 (App. Div.), certif. denied, 84 N.J. 441 (1980).]
Judge Ahto found that defendant's non-compliance with the PTI conditions justified termination as defendant had proven herself unfit for participation in the diversionary program. We are satisfied that, under the facts presented here, defendant's termination was regrettable but justified, and was not an abuse of discretion.
Finally, defendant claims she is entitled to withdraw her guilty plea or have another PTI termination hearing so she can introduce evidence from her computer proving that she had a sexual relationship with Cryan. She argues that, had she been granted access to her computers before her plea or the termination hearing, she would have been able to show that her stalking behavior had arisen from an abusive relationship and that her conduct was not malicious, but an unfortunate reflexive reaction to difficult circumstances.
We find no merit to this argument warranting an extended discussion. R. 2:11-3(e)(2). In providing a factual basis for her plea to fourth-degree stalking, defendant admitted to putting the victim - a person other than Cryan - in fear of injury by phone and mail in violation of N.J.S.A. 2C:12-10. Being in an abusive relationship does not provide a defense to criminal behavior toward a third party. In addition, during sentencing the State did not deny the existence of the relationship and defendant was allowed to argue that the abusive relationship with Cryan as a reason for mitigation.
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