NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2013
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-09-01817.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Ashrafi and Guadagno.
Defendant Tanis A. Colelli appeals from denial of her application for enrollment in the Pretrial Intervention Program (PTI) pursuant to N.J.S.A. 2C:43-12 to -14 and Rule 3:28, and also from the sentence of three years imprisonment with two years of parole ineligibility following her guilty plea to a third-degree charge of theft. We affirm.
We derive the relevant facts from the prosecutor's memorandum denying defendant's admission to PTI and from her plea allocution. Defendant, a thirty-eight-year-old mother of two teenagers, was the bookkeeper for the Atlantic Highlands Board of Education. Her salary was about $34, 000 per year. She suffered financial difficulties and embarked on a scheme to use her position to steal money from the public school district. From October 2007 through May 2008, she issued duplicate salary checks to herself. As a result, she obtained $11, 508.68 in funds that she was not entitled to receive. The superintendent of the school district discovered the theft when he investigated shortages in the Board's accounts, and he notified the police. Defendant admitted her crimes.
In September 2009, a Monmouth County grand jury returned a five-count indictment against defendant: (count one) second-degree official misconduct, N.J.S.A. 2C:30-2(a); (count two) third-degree theft by deception, N.J.S.A. 2C:20-4; (count three) third-degree forgery, N.J.S.A. 2C:21-1(a)(2); (count four) third-degree uttering a forged instrument, N.J.S.A. 2C:21- 1(a)(3); and (count five) fourth-degree falsifying public records, N.J.S.A. 2C:21-4(a).
This matter being defendant's first contact with the criminal justice system, she applied for admission to the PTI program. Both the PTI program director and the Monmouth County Prosecutor's Office denied her application. The Law Division then denied her appeal of that decision by order and oral decision on March 12, 2010.
Following pretrial motions in the criminal case, defendant entered into a plea agreement with the prosecutor's office and pleaded guilty on November 1, 2010, to count two of the indictment, theft by deception. The plea agreement exposed her to a sentence of up to five years imprisonment with two years of parole ineligibility in accordance with N.J.S.A. 2C:43-6.5. Additional terms of defendant's plea agreement required that she pay restitution and forfeit her public employment. The State agreed to dismiss the other four counts of the indictment in exchange for defendant's guilty plea to the theft charge.
On March 18, 2011, the court held a sentencing hearing and found two aggravating factors applicable: breach of the public trust and the need to deter defendant and others from committing such crimes. N.J.S.A. 2C:44-1(a)(4), (9). The court found six mitigating factors applicable to the sentence: payment of restitution, no prior criminal history, character and attitude of defendant, likely affirmative response to probationary treatment, excessive hardship of imprisonment on defendant and her dependents, and the willingness of defendant to cooperate with law enforcement authorities. N.J.S.A. 2C:44-1(b)(6), (7), (9), (10), (11), (12). Finding that the mitigating factors outweighed the aggravating factors, the court sentenced defendant to three years imprisonment, the minimum of the third-degree sentencing range, N.J.S.A. 2C:43-6(a)(3), with two years of parole ineligibility as mandated by N.J.S.A. 2C:43-6.5(a). The court also ordered her to pay restitution of $11, 508.00, as well as certain mandatory money penalties totaling another $155.00, and also to forfeit her public employment. Defendant was remanded into custody to begin serving the prison sentence.
Subsequently, while this appeal was pending, the trial court reduced defendant's sentence pursuant to N.J.S.A. 2C:43-6.5(c)(2) (quoted in footnote 1) to 573 days spent in custody, time served. The court issued a Change of Judgment of Conviction on October 10, 2012, which continued defendant's forfeiture of public employment and the requirement ...