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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. DORA WILLIAMS, Defendant–Appellant.

DOCKET NO. A–2076–12T3

    Decided: April 04, 2014

Before Judges Ashrafi and St. John.Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, 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).

Defendant Dora Williams 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.   We affirm.

The charges against defendant resulted from an investigation by the Watchung Police of counterfeit currency being used at a local business on the morning of September 2, 2011.   A woman had presented ten counterfeit hundred dollar bills to purchase a $925 money order at the Stop and Shop Supermarket on State Highway 22.   The bills were actually “washed” five dollar bills on which the image of a hundred dollar bill had been superimposed.   The police viewed a video recording at the store showing the woman who conducted the transaction and also a recording showing that the woman left in a Honda Accord after she obtained the money order.

The police investigation discovered that a similar transaction had been attempted at a Stop and Shop Supermarket in Union Township earlier the same morning.   A video recording from that store showed the same woman had attempted to purchase a money order at that location.   The clerk in the Union Township store noticed that all the bills contained the same serial number and declined the transaction.

The police also learned that similar bills had been used to purchase a money order in Union Township on August 28, 2011, but by a different woman.   Both the money order purchased in Watchung on September 2 and the one purchased in Union Township on August 28 had been deposited into defendant's bank account.   Through motor vehicle records, the police matched defendant's driver's license photo with the person who conducted the September 2 transactions.   In addition, they found that a Honda Accord was registered to defendant.

A Somerset County grand jury indicted defendant on two counts:  third-degree uttering counterfeit bills, in violation of N.J.S.A. 2C:21–1(a)(2) and (3);  and third-degree theft by deception, in violation of N.J.S.A. 2C:20–4.   Defendant applied for enrollment in the PTI program.   The PTI Director for Somerset County denied her application on the ground that defendant's crimes and offense history demonstrated a continuing pattern of criminal activity that was unlikely to be corrected through supervisory treatment under PTI. The PTI Director noted that defendant had been convicted two times before in municipal court, that she had also attempted to commit the same crimes in Union County, and that the crimes were committed for financial gain.   After her rejection from PTI, defendant entered into a plea agreement with the Prosecutor's Office and pleaded guilty to both charges in the indictment.

Before her sentencing, defendant filed an untimely motion pursuant to Rule 3:28(h) for review in the Law Division of her PTI rejection.   The Prosecutor's Office opposed the motion.   The court issued a written decision by which it denied defendant's motion.   The court then sentenced defendant to three years of probation with special conditions that she pay $1,000 restitution and complete seventy-five hours of community service.   The sentence complied precisely with the terms of her plea agreement.

On appeal before us, defendant argues:


We find no merit in defendant's appeal.

Defendant contends the PTI Director and the Prosecutor's Office did not adequately consider all the factors that are applicable in determining whether she should be admitted to the PTI program.   She emphasizes that she was thirty-one years old at the time of her offenses and had no record of prior arrest or conviction on indictable charges, and that she committed the offenses because she needed money to pay her rent.

Admission to the PTI program requires a favorable recommendation from the PTI director and the consent of the prosecutor.  State v. Nwobu, 139 N.J. 236, 246 (1995).   In determining whether to consent to admission, the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43–12(e) and certain additional factors listed in Guideline 3 of Rule 3:28.   The lists are 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 the prosecutor's 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.

Here, the Prosecutor's Office reviewed the relevant factors and rejected defendant's application primarily because she displayed continuing unlawful and anti-social conduct and because counterfeiting by its nature involves organized criminal activity.   The Prosecutor noted that defendant had been convicted of shoplifting in 2001 and of violating a loitering ordinance in 2005.   Although these convictions did not rise to the level of indictable offenses, they demonstrated anti-social conduct over a period of time.  N.J.S.A. 2C:43–12(e)(8);  Rule 3:28, Guideline 3(e).   They contradicted any contention that defendant's crimes on this occasion were an isolated and spontaneous aberration from an otherwise lawful life.

Furthermore, crimes involving counterfeiting typically entail organization and concerted conduct that involves other offenders.   There was no evidence that traditional organized crime groups were involved in defendant's offenses, but her crimes clearly involved planning and the participation of others.   Defendant contends she was not charged with the actual crime of counterfeiting, but she cannot dispute that she knowingly obtained the bills, directly or indirectly, from others who committed that crime.   Furthermore, she engaged in a scheme with others to pass the counterfeit bills.   Similar counterfeit bills were passed by defendant and at least one other woman using the same mode of operation, and the proceeds were deposited into defendant's account.   Thus, the nature and facts of the offenses showed organization, planning, and continuity in the criminal activity.   See N.J.S.A. 2C:43–12(e)(1), (2), (13), (15);  Rule 3:28, Guideline 3(i).

Defendant argues that the Prosecutor failed to take into consideration that defendant is a single mother of two children who was motivated by her need for rent money.   She argues that a criminal conviction on her record will obstruct her ability to support herself and her children and will not benefit society.   She states she obtained an esthetician's certificate and became employed in a waxing salon before the time of her sentencing.   However, while defendant attempts to portray her crimes as relatively minor, counterfeiting and the passing of counterfeit money have never been viewed as minor crimes.   Together with her prior anti-social behavior in committing offenses, defendant did not demonstrate the kind of character and personal traits that inspired confidence in the sufficiency of supervisory treatment under the PTI program to deter future unlawful conduct.   See N.J.S.A. 2C:43–12(e)(5), (6), (17).

We agree with the Law Division that defendant did not demonstrate clearly and convincingly a patent and gross abuse of discretion in her rejection from the PTI program.  Wallace, supra, 146 N.J. at 582.



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