August 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENDRA MURPHY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-06-0991.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012
Before Judges Simonelli and Waugh.
Kendra Murphy appeals from the October 29, 2010 order of the Law Division affirming the prosecutor's denial of her application for pre-trial intervention (PTI). We affirm.
We discern the following facts and procedural history from the record on appeal.
On February 1, 2010, Murphy sent a text message to her sister stating that she should come to the Target store in Ocean Township where Murphy worked as a cashier. The text said she would receive a "big discount." The next day, Murphy's sister and a friend came to the store, shopped, and then went to Murphy's register with more than $2500 in merchandise. Murphy scanned the items, but suspended the transaction. She gave her sister and friend the suspended ticket and told them they could leave the store with the merchandise, even though they had not paid for it.
Members of the Target's security staff stopped Murphy's sister and the friend before they could leave the store. They told the security staff members that Murphy was the cashier who checked them out, and explained their relationship with her. When questioned, Murphy admitted that she invited her sister to the store so she could take merchandise without paying for it. Murphy also admitted that she had conducted similar transactions in the past with other friends and family members. The record reflects that there were seven prior incidents involving Murphy at the Target store, for which she was never charged.
Murphy was arrested again in April 2010 for shoplifting from a store in Freehold Township. She pled guilty to violating a municipal ordinance and paid a fine. Later in April, Murphy was arrested in Virginia for shoplifting. That charge was eventually dismissed when the State decided not to prosecute.
In June, Murphy waived her right to indictment and was charged by accusation with third-degree conspiracy to commit shoplifting, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-11(b)(2), and third-degree shoplifting, contrary to N.J.S.A. 2C:20-11(b)(1), all related to the February 2 incident at Target.
Murphy applied for PTI. Murphy's "life coach" wrote a letter to the PTI director on Murphy's behalf. Her life coach noted that Murphy had recently moved to Virginia, enrolled in a community college for the upcoming fall semester, and was active in two local churches. Murphy had also obtained a job in Virginia. Her new employer in Virginia also wrote a letter on her behalf, speaking very favorably about Murphy and her performance as an employee. At the time, Murphy had been with that employer for three months.
On July 7, the PTI director recommended that Murphy be accepted into PTI. However, on August 31, the prosecutor issued a memorandum rejecting Murphy's PTI application. In the memorandum, the prosecutor explained that she had considered the factors set forth in N.J.S.A. 2C:43-12(e). She particularly relied on the facts that Murphy had been "employed in a position of trust as a cashier" at Target and had violated that trust on several occasions by using her position to help others obtain property without payment. The prosecutor also questioned Murphy's ability to succeed in the PTI program in light of the several incidents at Target, in Freehold Township, and in Virginia. The prosecutor also cited the fact that Target's manager of loss prevention "strongly object[ed]" to Murphy being accepted into PTI. Finally, the prosecutor stated that placing Murphy in PTI would "adversely affect the prosecution of the co-defendant." The prosecutor ultimately concluded that the negative factors significantly outweighed the positive factors set forth in the PTI application.
Murphy filed a motion in the Law Division, appealing the prosecutor's rejection and arguing that it "amount[ed] to a patent and gross abuse of discretion." She also argued that the prosecutor had failed to consider the impact the conviction would have on her ability to obtain a nursing license, that the prosecutor improperly considered the subsequent charges in determining Murphy lacked motivation, and that accepting her PTI application would not negatively impact the prosecution of her co-defendant. Following oral argument, the motion judge ordered supplemental briefing, and reserved decision. In a supplemental letter brief, the prosecutor noted that Murphy had not told her PTI investigator that she intended to pursue a nursing career, but argued that adverse consequences in that regard were not a basis for admission to PTI. On October 29, the judge denied Murphy's motion.
Murphy pled guilty to conspiracy to commit shoplifting on November 1. She was subsequently sentenced to two years of probation with the condition she maintain fulltime employment and/or education, complete seventy-five hours of community service, and participate in psychological counseling. This appeal followed.
Murphy raises the following issues on appeal:
THE PROSECUTOR COMMITTED A PATENT AND GROSS ABUSE OF DISCRETION BY REJECTING MURPHY'S PTI APPLICATION FOR THE OFFENSE OF SHOPLIFTING, ALTHOUGH THE PTI DIRECTOR RECOMMENDED HER ADMISSION TO THE PROGRAM, AND MURPHY WAS 21 YEARS OLD, HAD NO CRIMINAL RECORD, AND WAS A FULL-TIME STUDENT IN A NURSING PROGRAM.
A. The Prosecutor Should Not Have Considered Murphy's April Arrests For Shoplifting As Evidence That She "Lacks The Motivation To Succeed In PTI" Because They Occurred Months Before She Applied For Admission To The Program. Moreover, The Extraordinary Steps To Better Her Life That Murphy Has Taken Since Her April Arrests And June PTI Application, Including Her Enrollment In A Nursing Program, Firmly Demonstrate That She Is Strongly Motivated To Succeed.
B. There Was No Basis For The Prosecutor's Conclusion That Murphy's Participation In PTI Would Adversely Affect The Prosecution Of The Co-defendants, Because The State Did Not Intend To Prosecute the Co-defendants.
C. The Prosecutor Placed Undue Weight On The Fact That Murphy "Violated The Trust" Of The Target Department Store When She Allowed Family And Friends to Shoplift, And On The Loss Prevention Officer's Opposition To Murphy's PTI Application.
D. The Prosecutor Failed To Consider All Relevant Factors.
E. The Prosecutor's Errors Amounted To A Patent And Gross Abuse Of Discretion Because They Will Clearly Subvert The Goals Of PTI.
Judicial review of decisions to reject applications for PTI is "'severely limited,'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), serving to "check only the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). To set aside a prosecutor's rejection, "a defendant must clearly and convincingly establish that the prosecutor's decision constitute[d] a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008) (citations and internal quotation marks omitted); State v. Dalglish, 86 N.J. 503, 509 (1981). "[A] party must show that the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a 'clear error in judgment.'" Nwobu, supra, 139 N.J. at 247 (quoting State v. Bender, 80 N.J. 84, 93 (1979)). To meet this heavy burden, a rejected applicant must show that the prosecutor's error "will clearly subvert the goals underlying Pretrial Intervention." Bender, supra, 80 N.J. at 93.
Having reviewed the record and the parties' arguments in light of the applicable law, we affirm the decision on appeal essentially for the reasons stated by Judge Francis J. Vernoia in his comprehensive oral decision.
As the judge observed, Murphy was "the essential element for each of the [Target] thefts," which involved breaches of her position of trust. He also noted that, shortly after the Target offense, Murphy committed another offense in Freehold Township. The judge correctly relied on State v. Brooks, 175 N.J. 215, 227-30 (2002) in determining that the subsequent offense, committed so soon after her arrest for the Target offense, was appropriately considered in terms of her amenability to PTI. The judge's reliance on the opposition of Target was also appropriate. State v. Imbiani, 291 N.J. Super. 171, 180 (App. Div. 1996).
The judge carefully and appropriately considered each of the relevant issues in making his determination that Murphy failed to meet her heavy burden to demonstrate that the prosecutor's decision was an abuse of discretion. As noted above, a rejected applicant for PTI must "clearly and convincingly establish that the prosecutor's decision constitute[d] a patent and gross abuse of discretion." Watkins, supra, 193 N.J. at 520. Murphy failed to do so.
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