May 22, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOYCE J. SIPLER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-10-0632.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad and Haas.
Defendant Joyce Sipler appeals from the December 16, 2011 order of the Law Division denying her motion to compel admission into the pre-trial intervention (PTI) program over the objections of the PTI director and the county prosecutor. We affirm.
The facts relevant to the issues raised on appeal are as follows. Defendant was hired as an accounts receivable clerk at Lampe Berger USA in 2005. In March 20ll, she was terminated for "poor performance." In reconciling defendant's files, her employer discovered that defendant had illegally diverted checks made payable to Lampe Berger to her own personal account. Defendant admitted to police that she began stealing checks from her employer in November 2010, which she deposited into her personal account. Defendant was unaware of the number of checks or amount of money she had stolen from her employer. Bank records revealed that in the nine months from June 27, 2010 to March 11, 2011, defendant deposited ninety-five checks that had been payable to Lampe Berger totaling $53, 392.76 into her personal account, after forging the endorsement of the company.
Defendant was indicted for third-degree theft, N.J.S.A. 2C:20-3. She applied for entry into the Somerset County PTI Program. On October 26, 2011 her application was rejected by the PTI director pursuant to N.J.S.A. 2C:43-12e(4), (5), (6), (7), (8), (14), and (17), and explained:
The instant offense was part of an ongoing antisocial behavior as the thefts occurred over a period of several months and involved multiple checks on individual dates involving over $40, 000. The victim in this case opposes the defendant's entry into PTI and the public need for prosecution to deter others from committing similar offenses outweighs the value of supervisory treatment for this defendant. Additionally the defendant would not be benefited by supervisory treatment as the instant offense appears related to financial gain, a situation that likely could not be corrected through supervisory treatment.
Defendant appealed, which was denied by Judge Julie Marino by order and written opinion of December 16, 2011. Defendant reappeared before Judge Marino on January 27, 2012 and entered a negotiated plea to the charge. Judge Marino subsequently sentenced her to two years of probation, fifty hours of community service and payment of the entire theft in restitution to her former employer. Appropriate fines, fees, and penalties were also imposed. This appeal ensued.
On appeal, defendant contends a remand is warranted because the trial court failed to adequately address whether the prosecutor and program director employed a presumption against admission into PTI based on the nature of the offense and whether individuals who committed similar offenses were being admitted into the program. Based on our review of the record and applicable law, we find this argument unpersuasive.
Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). Admissions into PTI are governed both by statute, N.J.S.A. 2C:43-12(a)(1), and court rule, R. 3:28. See Guidelines for Operation of Pre-Trial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 1 on R. 3:28 (2013). The scope of judicial review is "severely limited[, ]" and interference by reviewing courts is reserved for those cases in which it is needed "to check  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)); accord State v. Nwobu, 139 N.J. 236, 246 (1995).
We review PTI decisions with enhanced deference. State v. Brooks, 175 N.J. 215, 225 (2002); State v. Baynes, 148 N.J. 434, 443 (1997). A defendant seeking to overturn rejection from PTI must demonstrate by clear and convincing evidence that the decision rejecting his or her application was "a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008).
The Supreme Court has noted that if a rejected defendant can prove the decision "(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[, ]" then an abuse of discretion would "be manifest." State v. Bender, 80 N.J. 84, 93 (1979). In order to raise that presumption to the level of a "patent and gross" abuse of discretion, however, a defendant must also establish that his or her rejection from PTI "will clearly subvert the goals" of the PTI program. Ibid. It may be appropriate to reverse a decision rejecting a defendant from PTI where it "'is contrary to the predominant views of others responsible for the administration of criminal justice, '" Nwobu, supra, 139 N.J. at 253 (quoting State v. Dalglish, 86 N.J. 503, 510 (1981)), such that it is "'clearly unreasonable so as to shock the judicial conscience'" or that it "'could not have reasonably been made upon a weighing of the relevant factors[, ]'" id. at 254 (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).
We are satisfied Judge Marino properly addressed the relevant factors and considered the appropriate standard in reviewing defendant's PTI application. We are also satisfied defendant's arguments do not meet the high standard necessary to reverse a prosecutor's rejection of her PTI application.
Defendant had argued to the trial court that the prosecutor's denial of PTI was essentially based on a presumption against her admission under N.J.S.A. 2C:43-12e(8), which amounted to an end-run around the Supreme Court's decision in State v. Watkins, 193 N.J. 507 (2008). She additionally argued that similarly situated defendants were being admitted into PTI.
In a comprehensive written opinion, Judge Marino fully discussed defendant's arguments on these two issues and the State's response. The judge's opinion contained a detailed explanation of the inapplicability of the Watkins case and Guideline 3(i)(2), i.e. a presumption against admission to PTI to an offender who is "part of a continuing criminal business or enterprise[.]" Judge Marino concluded that the crime defendant was charged with did constitute "a continuing pattern of antisocial behavior[, ]" N.J.S.A. 2C:43-12e(8), and her rejection into PTI was based on a consideration of multiple facts: N.J.S.A. 2C:43-12e(4), the victim opposed PTI; (5) and (6), based on the diversion of ninety-five separate checks, it is unlikely defendant's condition would be conducive to change through her participation in the supervisory treatment; and (7), (14), and (17), because of the violation of trust of her employer and numerous criminal acts committed over at least nine months, the public need for prosecution would outweigh the value of supervisory treatment. The judge also properly recognized her limited scope of review of the prosecutor's discretionary decision to deny PTI.
Defendant renews her arguments on appeal. The record reflects that the prosecutor and trial court considered and assessed all relevant factors in reaching the PTI decision. We further note that defendant presented no statistical or other evidence to support her claim of disparity. Moreover, a defendant will generally not prevail in a PTI challenge merely by demonstrating that, "unlike [her]self, others who have been charged with similar offenses have been diverted into PTI. Rather, [s]he is required to demonstrate through independent evidence that the prosecutor's refusal to sanction [her] admission was in fact premised upon the consideration of an irrelevant or inappropriate factor." See State v. Sutton, 80 N.J. 110, 119-20 (1979). For the reasons expressed by Judge Marino, we agree that the prosecutor's decision to deny defendant admission into PTI over the State's objection was neither an egregious example of injustice or unfairness nor a patent and gross abuse of discretion that warrants our intervention.