STATE OF NEW JERSEY v. TANIS COLELLI (2013)

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:43–6.5.¹ 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 that she pay restitution as previously ordered to the Atlantic Highlands Board of Education.

On appeal, defendant argues:

POINT I

THE PTI REJECTION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION, NECESSITATING REVERSAL AND ADMISSION OF THE DEFENDANT TO PTI.

A. The Fact of the Defendant's Public Employment Was the Sole Operative Reason for Her Rejection, and Is Insufficient to Warrant Denial of PTI.

B. The Prosecutor Clearly Failed To Consider All Relevant Factors.

POINT II

THE TRIAL COURT ERRED IN DECLINING TO WAIVE THE MANDATORY MINIMUM SENTENCE, BECAUSE THE “EXTRAORDINARY CIRCUMSTANCES” REQUIREMENT FOR WAIVER IS MET HERE.

The second point is now moot because of the trial court's reduction of defendant's sentence to time served.   We reject the arguments defendant makes in her first point with respect to her rejection from PTI enrollment.

Admission to the PTI program requires a favorable recommendation from the PTI Director, who is the Criminal Division Manager, and also the consent of the prosecutor.  State v. Nwobu, 139 N.J. 236, 246 (1995).   In determining whether to recommend or consent to admission, the Criminal Division Manager and the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43–12(e).   The statutory list is not exhaustive, and additional relevant factors may also be considered.  State v. Negran, 178 N.J. 73, 84 (2003);  State v. Brooks, 175 N.J. 215, 226–27 (2002).

Judicial review of their decision is severely limited.  Nwobu, supra, 139 N.J. at 246;  State v. Hermann, 80 N.J. 122, 128 (1979).   Prosecutors have wide latitude in deciding whom to divert into the PTI program and whom to prosecute.  Nwobu, supra, 139 N.J. at 246.   Courts grant “enhanced” or “extra” deference to that decision.  Ibid.;  accord State v. Baynes, 148 N.J. 434, 443–44 (1997).  “Judicial review serves to check only the ‘most egregious examples of injustice and unfairness.’ ”  Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977));  accord Nwobu, supra, 139 N.J. at 246;  State v. DeMarco, 107 N.J. 562, 566 (1987).

Consequently, a reviewing court may order a defendant into PTI over the prosecutor's objection only if the defendant can “clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of ․ discretion.”  State v. Wallace, 146 N.J. 576, 582 (1996) (quoting Leonardis, supra, 73 N.J. at 382) (internal quotation marks omitted);  accord Baynes, supra, 148 N.J. at 444.

In State v. Bender, 80 N.J. 84, 93 (1979), the Supreme Court explained the standard of review in greater detail:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (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.   In order for such an abuse of discretion to rise to the level of “patent and gross,” it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.

In this case, the prosecutor explained defendant's rejection by means of a detailed written decision, reasoning in conclusion that:

Notwithstanding the defendant's difficult family financial situation, she was hired to work for a vital public agency, the Atlantic Highlands Board of Education.   In this environment, tax-payers [sic] dollars are in short supply.   She was entrusted to safeguard public monies and she did not do that.   In fact she stole monies thereby benefiting herself and not the Borough's children.

The prosecutor then cited N.J.S.A. 2C:43–6.5(d)(1) (quoted in footnote 1), for its requirement that the Attorney General approve a prosecutor's recommendation for enrollment in PTI in cases such as this.   According to the prosecutor, the circumstances of this case did not warrant seeking the Attorney General's approval.

Defendant argues it was a patent and gross abuse of the prosecutor's discretion to reject defendant only on the ground that she was a public employee who stole in the course of her employment.   She states that her theft did not exceed by very much the threshold of $10,000 under N.J.S.A. 2C:43–6.5(b)(2), and the Legislature did not intend that the newly-enacted statute prevent PTI diversion for a low-level public employee such as she was.   We disagree.   As the trial court concluded, N.J.S.A. 2C:43–6.5(d)(1) expresses the Legislature's policy against PTI diversion of a criminal case for a public employee who steals more than $10,000.   The statute creates a presumption against PTI for one such as defendant except in extraordinary circumstances.   Financial struggles such as defendant's are not extraordinary.   This was not a situation where defendant made a single error of judgment in taking money she was not entitled to receive.   She carried out a plan of writing duplicate paychecks to herself every two weeks for a period of seven months.

Furthermore, defendant was charged with the second-degree crime of official misconduct, and Guideline 3(i) of Rule 3:28 states that, although any defendant is potentially eligible for PTI, “If the crime was ․ a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected.”   The same guideline also states that a defendant charged with a first or second degree offense “should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor.”   Here, defendant was charged with second-degree official misconduct and the prosecutor did not join in her application.

The prosecutor's decision acknowledged the absence of a criminal history and defendant's family and medical difficulties.   The prosecutor weighed those factors in the overall balance in denying PTI. The legislative policy of limiting PTI in cases such as this weighed heavily in the prosecutor's decision, as it should.   Defendant has not demonstrated a patent and gross abuse of discretion in that decision.

The Law Division correctly denied defendant's appeal of the PTI rejection.

Affirmed.

FOOTNOTES

FN1. The statute, which took effect in April 2007, mandates a period of parole ineligibility if a public employee is convicted of any of nineteen listed crimes, including theft of more than $10,000, in the course of the public employment.   In parts relevant to this appeal, the statute provides:§ 2C:43–6.5.  Mandatory minimum prison term for public officer, employee convicted of certain crimes;  waiver, reductiona.  Notwithstanding the provisions of subsection a. of N.J.S. 2C:43–6 and except as otherwise provided in subsection c. of this section, a person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment as set forth in subsection b. of this section, shall be sentenced to a mandatory minimum term of imprisonment without eligibility for parole as follows:  for a crime of the fourth degree, the mandatory minimum term shall be one year;  for a crime of the third degree, two years;  for a crime of the second degree, five years;  and for a crime of the first degree, 10 years;  unless the provisions of any other law provide for a higher mandatory minimum term.   As used in this subsection, “a crime that involves or touches such office or employment” means that the crime was related directly to the person's performance in, or circumstances flowing from, the specific public office or employment held by the person.b. Subsection a.   of this section applies to a conviction of any of the following crimes:․(2) N.J.S. 2C:20–4, theft by deception, if the amount involved exceeds $10,000;․c․(2) If the court finds by clear and convincing evidence that extraordinary circumstances exist such that imposition of a mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others, the court may waive or reduce the mandatory minimum term of imprisonment required by subsection a. of this section.   In making any such finding, the court must state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply.․d. (1) A prosecutor shall not recommend the admission into or consent to the referral to a pretrial intervention program of a person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is charged with a crime that involves or touches such office or employment as set forth in subsection b. of this section, without the prior approval of the Attorney General.(2) A person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment as set forth in subsection b. of this section shall be ineligible for participation in any program of intensive supervision during any period of parole ineligibility.[Emphasis added.].  FN1. The statute, which took effect in April 2007, mandates a period of parole ineligibility if a public employee is convicted of any of nineteen listed crimes, including theft of more than $10,000, in the course of the public employment.   In parts relevant to this appeal, the statute provides:§ 2C:43–6.5.  Mandatory minimum prison term for public officer, employee convicted of certain crimes;  waiver, reductiona.  Notwithstanding the provisions of subsection a. of N.J.S. 2C:43–6 and except as otherwise provided in subsection c. of this section, a person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment as set forth in subsection b. of this section, shall be sentenced to a mandatory minimum term of imprisonment without eligibility for parole as follows:  for a crime of the fourth degree, the mandatory minimum term shall be one year;  for a crime of the third degree, two years;  for a crime of the second degree, five years;  and for a crime of the first degree, 10 years;  unless the provisions of any other law provide for a higher mandatory minimum term.   As used in this subsection, “a crime that involves or touches such office or employment” means that the crime was related directly to the person's performance in, or circumstances flowing from, the specific public office or employment held by the person.b. Subsection a.   of this section applies to a conviction of any of the following crimes:․(2) N.J.S. 2C:20–4, theft by deception, if the amount involved exceeds $10,000;․c․(2) If the court finds by clear and convincing evidence that extraordinary circumstances exist such that imposition of a mandatory minimum term would be a serious injustice which overrides the need to deter such conduct in others, the court may waive or reduce the mandatory minimum term of imprisonment required by subsection a. of this section.   In making any such finding, the court must state with specificity its reasons for waiving or reducing the mandatory minimum sentence that would otherwise apply.․d. (1) A prosecutor shall not recommend the admission into or consent to the referral to a pretrial intervention program of a person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is charged with a crime that involves or touches such office or employment as set forth in subsection b. of this section, without the prior approval of the Attorney General.(2) A person who serves or has served as a public officer or employee under the government of this State, or any political subdivision thereof, who is convicted of a crime that involves or touches such office or employment as set forth in subsection b. of this section shall be ineligible for participation in any program of intensive supervision during any period of parole ineligibility.[Emphasis added.]

PER CURIAM