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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...