NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-04-0769.
Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).
Patricia Prezioso argued the cause for respondent William Roseman (McCusker, Anselmi, Rosen & Carvelli, attorneys; Ms. Prezioso, on the brief).
Alan L. Zegas argued the cause for respondent Lori Lewin (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the brief).
Before Judges Fisher and Espinosa.
Defendants William Roseman, who is now and was at all relevant times the Mayor of Carlstadt, and his ex-wife, defendant Lori Lewin, were indicted and charged with, among other things, second-degree official misconduct, N.J.S.A. 2C:30-2(a), as a result of Lewin having received, after the divorce, benefits through Roseman's health care plan with Carlstadt. In this appeal, the State argues the trial judge overstepped her bounds by permitting defendants to apply for pretrial intervention (PTI) near the eve of trial and by overruling the prosecutor's objection to defendants' PTI applications. We reverse as to Roseman and remand for further consideration of Lewin's PTI application.
Roseman has been the Mayor of Carlstadt since 1996 and, through that position, was provided with the benefits of a health care plan that covered both him and his family. Roseman and Lewin divorced in 2000. Their judgment of divorce imposed no obligation on Roseman to provide Lewin with health insurance coverage; Lewin's employer provided her with coverage. Roseman should have, but allegedly failed, to advise his employer of the divorce. Consequently, Lewin received prescription drug and dental benefits through the coverage provided by Carlstadt. Years later, when these circumstances came to light, the claims were resubmitted to Lewin's health insurer, which, for the most part, reimbursed Carlstadt; Lewin compensated Carlstadt for the remainder.
A grand jury indicted both Roseman and Lewin on June 4, 2009, charging them with third-degree conspiracy, N.J.S.A. 2C:5-2, third-degree theft by deception, N.J.S.A. 2C:20-4, and second-degree official misconduct, N.J.S.A. 2C:30-2(a). Although Lewin was not and had not been a public servant, she was charged with second-degree official misconduct, apparently on an accomplice liability theory.
Approximately one month after the original indictment, the State made plea offers, recommending probation conditioned upon restitution if defendants pleaded guilty to third-degree theft. The prosecution also sought as part of the plea offer Roseman's resignation from his position as mayor, and his consent to lifetime disqualification from public employment. Defendants rejected these offers.
Defendants' subsequent PTI applications were rejected in either late 2009 or early 2010. The State asserts that his attorney thereafter represented that Roseman would accept PTI on the conditions that he make restitution, resign from office, and be subject to lifetime disqualification from public employment. In this regard, the prosecutor sought and obtained the Attorney General's consent to PTI pursuant to those conditions. See N.J.S.A. 2C:43-6.5(d)(1). If Roseman accepted, the State also agreed to an outright dismissal of the charges against Lewin. In March 2010, Roseman rejected PTI on those conditions. The following month, the grand jury returned a superseding ...