December 1, 2016
appeal from Superior Court of New Jersey, Law Division, Union
County, Accusation No. 15-03-0189.
Michael Noriega argued the cause for appellant (Bramnick,
Rodriguez, Grabas, Arnold & Mangan, LLC, attorneys; Mr.
Noriega, of counsel and on the briefs).
Diana-Marie Laventure, Special Deputy Attorney General/Acting
Assistant Prosecutor, argued the cause for respondent (Grace
H. Park, Acting Union County Prosecutor, attorney; Ms.
Laventure, of counsel and on the brief).
Judges Lihotz, Hoffman and Whipple.
James Denman, a former Scotch Plains police officer, appeals
from his conviction for third-degree attempted misapplication
of funds, N.J.S.A. 2C:21-15 and 2C:5-1. Defendant pled guilty
to the charge pursuant to a plea agreement that called for
him to receive a probationary term and forfeit his position
as a police officer.  On May 22, 2015, the court sentenced
defendant to a two-year term of probation and forfeiture of
appeal, defendant presents the following arguments
challenging the May 18, 2015 Law Division order, which denied
his appeal of the State's rejection of his PTI
THE STATE'S DENIAL OF MR. DENMAN FROM PTI WAS A PATENT
AND GROSS ABUSE OF DISCRETION ON MULTIPLE LEVELS AND REQUIRES
THIS COURT TO REVERSE AND REMAND THIS MATTER WITH CLEAR
INSTRUCTIONS TO THE PROSECUTOR'S OFFICE FOR
A) MR DENMAN DID NOT BREACH THE PUBLIC TRUST UNDER GUIDELINE
3(i)(4) AS THE OFFENSE DEALT WITH A PRIVATE ORGANIZATION AND
WAS IN NO WAY CONNECTED TO MR DENMAN'S SEPARATE PUBLIC
B) THE STATE'S UNFAIR RELIANCE ON IRRELEVANT AND
INAPPROPRIATE FACTORS; SUCH AS MR. DENMAN' S OCCUPATION
AS A POLICE OFFICER RESULTED IN AN UNJUST REJECTION FROM THE
PTI PROGRAM AND MUST BE REVERSED.
C) NOT ONLY WAS THERE A PATENT AND GROSS ABUSE OF DISCRETION
BY THE PROSECUTOR, BUT THE PROSECUTOR'S DECISION
COMPLETELY SUBVERTS THE GOALS UNDERLYING THE PTI PROGRAM;
WHERE A TRUE EVALUATION OF THE CRITERIA WOULD REVEAL THAT MR.
DENMAN IS AN IDEAL CANDIDATE FOR THE PROGRAM.
reviewed the record in light of the applicable legal
standards, we conclude both the prosecutor and the trial
court mistakenly applied PTI Guideline 3(i). They rejected
defendant's application because the charge of
third-degree attempted misapplication of funds from the
Police Athletic League (PAL) constituted a breach "of
the public trust." This determination is erroneous.
Therefore, we reverse the ...