STATE OF NEW JERSEY VS. NEAL POMPER (15-11-1323, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 5, 2018
• Docket: A-3969-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3969-16T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

NEAL POMPER,

Defendant-Respondent. _______________________________

Argued May 16, 2018 – Decided June 5, 2018

Before Judges Alvarez, Nugent and Currier.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-11-1323.

David M. Liston, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; David M. Liston, of counsel and on the brief).

Neal Pomper, respondent, argued the cause pro se.

PER CURIAM

Charged with third-degree insurance fraud and related

offenses, defendant, Neal Pomper, an attorney, was denied Pretrial

Intervention (PTI) by a prosecutor, a decision affirmed by a Law

Division judge. After the case was scheduled for trial, another judge granted defendant PTI and directed the prosecutor to

consummate a plea offer on the prosecutor's proffered terms, with

one exception: the removal of the requirement that defendant

consent to disbarment. The State appeals. Because the second

judge did not have the authority to reconsider the first judge's

PTI decision or interfere in plea negotiations, we vacate the

implementing orders and remand this case for trial.

I.

Defendant is married and has seven children, one of whom, a

minor, lived with defendant and his wife when defendant applied

for PTI. Defendant has heart problems for which he takes

medication and eye problems that pose a risk to his vision. He

has no prior criminal history.

The State alleges the following facts. In 2011, a contractor

repaired certain flood damage to defendant's home. Defendant had

a legal assistant he employed prepare a false contractor's invoice

and send it to his homeowner's insurance company for payment.

Following an investigation, authorities charged defendant in a May

2015 complaint-warrant with two third-degree crimes, namely,

insurance fraud and attempted theft by deception, and one fourth-

degree crime, forgery.

Defendant applied for PTI. The criminal division manager

recommended his enrollment. A month later, after a Middlesex

2 A-3969-16T1 County grand jury indicted defendant for insurance fraud,

attempted theft by deception, forgery, and uttering a forged

instrument, an assistant prosecutor rejected defendant's PTI

application. The assistant prosecutor explained her decision in

a detailed letter that included her analysis of the statutory

criteria for PTI. Defendant's disbarment was not a consideration.

Two months later, the assistant prosecutor responded to

defendant's request for reconsideration based on medical evidence

documenting his heart and eye conditions, as well as statements

given to investigators by the employee who had prepared the forged

invoice. The assistant prosecutor again rejected defendant's PTI

application.

Thereafter, a grand jury charged defendant and his employee

in a superseding indictment with the third-degree crimes of

conspiracy, N.J.S.A. 2C:5-2, insurance fraud, N.J.S.A. 2C:21-

4.6(a) & (b), and attempted theft by deception, N.J.S.A. 2C:5-1

and 2C:20-4; and the fourth-degree crimes of uttering a forged

instrument, N.J.S.A. 2C:21-1(a)(3), and forgery, N.J.S.A. 2C:21-

1(a)(2). The grand jury also charged defendant's employee with

false swearing, N.J.S.A. 2C:28-2(a).

Following the superseding indictment, defendant appealed the

prosecutor's rejection of his PTI application. While the appeal

was pending before a Law Division judge, the parties engaged in

3 A-3969-16T1 plea negotiations. The State initially offered a plea with a

probationary sentence. Defendant counter-proposed he

conditionally plead guilty to an offense and resign permanently

from the practice of law in exchange for the State's consent to

PTI. In response, the State offered to consent to PTI for thirty-

six months if defendant agreed to four conditions: conditionally

plead guilty to two counts of the indictment; consent to disbarment

in a form approved by the Office of Attorney Ethics or the Supreme

Court; consent to never again hold public office; and agree that

upon violation of any PTI condition, he serve ninety days in county

jail. This was the State's final offer. Defendant agreed to all

terms except disbarment. Plea negotiations stalled on that issue,

and defense counsel informed the judge she should decide

defendant's PTI appeal.

The Law Division judge (the first judge) upheld the

prosecutor's decision. After analyzing the prosecutor's

consideration of the statutory criteria for PTI, the first judge

determined defendant had "not established by clear and convincing

evidence that the State's decision to reject his PTI application

was either a patent and gross abuse of discretion or arbitrary and

irrational nor has [d]efendant presented compelling reasons for

[his] entry into PTI." Defendant's disbarment played no part in

4 A-3969-16T1 the decision. Defendant filed a motion for reconsideration, which

the first judge denied.

Defendant next filed a motion for a non-jury trial and to

have the first judge recuse herself. The first judge granted both

applications. Citing State v. Kern, 325 N.J. Super. 435, 444-45

(App. Div. 1999), she noted a judge who has denied a defendant's

appeal from rejection of a PTI application should not preside over

the defendant's bench trial. The case was reassigned.

The judge who received the case (the second judge) conducted

a pre-trial conference at which he scheduled the case for trial.

After doing so, he asked if the parties could resolve the matter.

During the ensuing discussions, the second judge learned the

State's final plea offer included consenting to PTI on conditions,

including disbarment, which was the only condition defendant would

not accept.

The second judge criticized the prosecutor's insistence on

disbarment, particularly because defendant's offense was unrelated

to his practice of law. The judge believed the prosecutor had no

authority to force defendant's disbarment. Nonetheless, the

prosecutor did not make a new plea offer. The parties confirmed

the trial date and the pre-trial conference ended.

Following the pre-trial conference, and before the trial

date, defendant filed a motion for reconsideration before the

5 A-3969-16T1 second judge seeking enrollment in PTI. The second judge granted

the motion. At the conclusion of oral argument he stated: "I'm

putting him in PTI. I find that the [prosecutor's] office relied

on a factor that they're not entitled to rely upon. And so, he

would be admitted to PTI subject to all the other conditions,

which includes a conditional plea."

The judge refused to permit the State to withdraw its plea

offer. Rather, the judge directed the assistant prosecutor to

prepare the plea papers and take the conditional plea on the

State's terms, except defendant's consent to disbarment. The

judge said PTI would be "[thirty-six]" and he would stay his

decision pending the State's anticipated appeal.

The second judge entered an "amended" order "that the Motion

for Reconsideration to admit [d]efendant into PTI is hereby

Granted."1 Later, the judge entered a second order "that defendant

. . . [s]hall be enrolled in PTI without the condition that he

voluntarily agree to relinquish his law license."

The second judge amplified his decision in a written opinion.

After summarizing the action's procedural history and factual

background, he reviewed the procedural and substantive criteria

concerning PTI and case law circumscribing a prosecutor's

1 The appellate record does not include a prior order.

6 A-3969-16T1 discretion to approve or disapprove a defendant's admission into

the program. The judge questioned the prosecutor's jurisdiction

over regulation of the Bar. He concluded the prosecutor could not

require defendant's consent to disbarment as a condition of PTI,

because defendant's offense was unrelated to the practice of law.

He noted, however, the prosecutor could vindicate its concern over

defendant practicing law by referring the matter to the Office of

Attorney Ethics. After determining the prosecutor's conditioning

PTI on disbarment was a patent and gross abuse of discretion, the

second judge compelled defendant's admission into PTI without the

condition that he relinquish his law license.

In his written opinion, the second judge discussed neither

the content of the prosecutor's initial letters rejecting

defendant's PTI request nor the content of the first judge's

decisions. As we have noted, defendant's disbarment was not a

consideration in those decisions.

II.

The State appeals from the second judge's implementing order

and presents the following arguments:

[THE SECOND JUDGE] ABUSED THE COURT'S DISCRETION BY REVERSING [THE FIRST JUDGE'S] DECISION AND ORDERING DEFENDANT INTO PRETRIAL INTERVENTION (PTI) OVER THE STATE'S OBJECTION BECAUSE IT WAS NOT SHOWN CLEARLY AND CONVINCINGLY THAT THE PROSECUTOR'S DECISION WAS A PATENT AND GROSS ABUSE OF DISCRETION.

7 A-3969-16T1 A. [The Second Judge] Abused the Court's Discretion by Disregarding the "Law of the Case" Doctrine Without Explanation and Reversing a Co-Equal Court's Decision on the Same Issue.

B. The Order Compelling Defendant's PTI Admission Should Be Reversed Because It Was Not Shown Clearly and Convincingly That the Prosecutor's Refusal to Consent Was a Patent and Gross Abuse of Discretion.

In response, defendant argues the second judge properly

admitted him into PTI, because the prosecutor's unilateral attempt

to have him disbarred was a patent and gross abuse of discretion.

Defendant contends the law-of-the-case doctrine did not bar the

second judge's reconsideration of the first judge's decision.

Defendant also argues the State grossly and capriciously denied

him admission into PTI.

III.

A.

We first address the second judge's reconsideration of the

first judge's decision affirming the prosecutor's rejection of

PTI. The second judge had no statutory or other authority to

reconsider the first judge's decision. Even if he had the

authority, he misapplied the standard of review for a trial judge's

reconsideration of previous orders.

8 A-3969-16T1 The criteria for admission into PTI, as well as the procedures

concerning the program, are set forth in N.J.S.A. 2C:43-12 to -22

and Rule 3:28. If a defendant chooses to challenge a prosecutor's

non-consent to PTI, the challenge "shall be made on motion to the

Presiding Judge of the Criminal Division or to the judge to whom

the case has been assigned within ten days after the rejection."

R. 3:28(h). "[T]here shall be no pretrial review by an appellate

court if the rejection is upheld by the designated judge or the

Assignment Judge." R. 3:28(f). A defendant may seek appellate

review of the denial of his admission into PTI "on appeal from a

judgment of conviction." R. 3:28(g).

Neither the statutory PTI provisions nor Rule 3:28 authorize

a trial judge to review another judge's PTI decision. We have

previously explained:

[N]othing in the Act or the rules provide that a judge's decision of a PTI appeal can be appealed to or reversed by another Criminal Part judge. Rather, Rule 3:28(g) provides that a Criminal Part judge's denial of a PTI appeal is challengeable by appeal to this court after a judgment of conviction. Further, nothing suggests that a PTI appeal decided by one judge can be decided anew by a second judge. Such duplicative and, in this case, conflicting rulings by different Criminal Part judges are not contemplated by the Act or the rules. [State v. Waters, 439 N.J. Super. 215, 223-24 (App. Div. 2015).]

9 A-3969-16T1 In fact, nothing in the Rules of Criminal Procedure authorize

a party to ask for reconsideration of a judge's initial PTI

decision, though a comment on the civil practice rule authorizing

reconsideration states:

While the rule does not expressly apply to criminal actions, in view of the absence of a corollary criminal practice rule, the philosophy of the rule was nevertheless applied to a prosecutor's motion for reconsideration of a trial court order admitting a defendant to a pretrial intervention program over prosecutorial objection. See State v. Fitzsimmons, 286 N.J. Super. 141 (App. Div. 1995), remanded 143 N.J. 482 (1996).

[Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:49-2 (2018).]

Assuming the applicability of either the civil rule or its

philosophy to criminal matters, the purpose of reconsideration is

not to permit a party "to re-argue the motion that has already

been heard for the purpose of taking the proverbial second bite

of the apple." Fitzsimmons, 286 N.J. Super. at 147 (quoting Rule

4:49-2). Instead, "its purpose is to allow the losing party to

make 'a statement of the matters or controlling decisions which

counsel believes the court has overlooked or to which it has

erred.'" Ibid. (quoting Rule 4:49-2). For these reasons, a court

should grant a motion for reconsideration only "for those cases

which fall into that narrow corridor in which either (1) the Court

10 A-3969-16T1 has expressed its decision based upon a palpably incorrect or

irrational basis, or (2) it is obvious that the Court either did

not consider, or failed to appreciate the significance of

probative, competent evidence." Fusco v. Bd. of Educ. of Newark,

349 N.J. Super. 455, 462 (App. Div.) (2002) (quoting D'Atria v.

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

The first judge committed neither of these errors, but the

second judge did not reconsider the first judge's decision under

this standard. Rather, the second judge arbitrarily analyzed the

State's plea offer as if it were a prosecutor's response to

defendant's application for PTI, which it was not. A defendant

must apply for PTI "at the earliest possible opportunity, including

before indictment, but in any event no later than twenty-eight

days after indictment." R. 3:28(h). Defendant did so — twice —

long before the second judge became involved in the case. Each

time, the prosecutor timely responded.

We find nothing improper or inappropriate about a prosecutor

offering PTI as one of several terms of a plea offer after the

prosecutor has exercised the discretion to reject a defendant's

PTI application, provided the plea offer does not otherwise include

an unlawful condition. Such a decision falls well within a

prosecutor's "broad discretion in selecting matters for

11 A-3969-16T1 prosecution." In re Investigation Ringwood Fact Finding Comm.,

65 N.J. 512, 516 (1974).

Even if defendant appropriately filed his second motion for

reconsideration — and we do not suggest he did — the second judge

should have referred it to the first judge, whose decision was

targeted. This referral should have been made as a matter of

common sense to avoid inconsistent results. See O'Brien v.

O'Brien, 259 N.J. Super. 402, 405-07 (App. Div. 1992).

Defendant stated at oral argument the first judge had recused

herself, implying the first judge was unavailable to hear yet

another motion for reconsideration. That was not the case. The

first judge recused herself from presiding over defendant's bench

trial. She based her decision on a prior Appellate Division

ruling, which in turn based its decision on Rule 3:28(c). Kern,

325 N.J. Super. at 444-45.

When the court decided Kern, Rule 3:28(c) applied to

defendants who had been admitted to PTI and then returned "to the

ordinary course of prosecution."2 Kern, 325 N.J. Super. at 445.

Rule 3:28(c)(4) precluded the admissibility against a defendant

in subsequent proceedings of, among other documentary evidence,

program records, investigative reports, and statements made by the

2 Rule 3:28(c)(4) was amended June 15, 2007 to be effective September 1, 2007.

12 A-3969-16T1 defendant to program staff. The rule formerly included a provision

that "[n]o such hearing with respect to such defendant shall be

conducted by the designated judge who issued the order returning

the defendant to prosecution in the ordinary course." Kern, 325

N.J. Super. at 444 (quoting R. 3:28(c)(4) (1999)).

In Kern, the Appellate Division held "the spirit and policy

of the rule certainly support our determination that a judge who

denies an applicant's appeal from PTI rejection not also sit on

the ensuing bench trial for the criminal charges." Id. at 445.

Nothing in the former rule or Kern precludes a judge from hearing

a motion for reconsideration of her previous PTI decision. For

those reasons, the second judge should have dismissed the motion

or referred it to the first judge.

B.

The second judge compounded his error when he refused to

permit the State to withdraw its plea offer and directed the State

to consummate the plea under the terms it had proposed, with the

exception of defendant's disbarment. He had no authority to

participate in plea negotiations, and he certainly had no authority

to insist the State accept a plea on his modified terms.

Prosecutors and defense attorneys "may engage in discussions

relating to pleas and sentences." R. 3:9-3(a). The court, "[o]n

request of the prosecutor and defense counsel, . . . may permit

13 A-3969-16T1 the disclosure to it of the tentative agreement and the reasons

therefore . . . or, if no tentative agreement has been reached,

the status of the negotiations toward a plea agreement." R. 3:9-

3(c) (emphasis added). The court may indicate whether it will

"concur in the tentative agreement or, if no tentative agreement

has been reached and with the consent of both counsel, the maximum

sentence it would impose in the event the defendant enters a plea

of guilty," assuming the information in the presentence report

"supports its determination that the interest of justice would be

served thereby." R. 3:9-3(c).

"What the trial court clearly may not do, however, is

participate in plea negotiations." State v. Williams, 277 N.J.

Super. 40, 47 (App. Div. 1994) (citation omitted); accord, R. 3:9-

3(a) & (c). The Williams court explained, "[b]ecause a judge may

not participate in plea negotiations, a judge may not tender a

plea offer, especially over the objection of the prosecutor." 277

N.J. Super. at 48 (citing Com v. Gordon, 574 N.E. 2d 974, 975-76

(1991)). The court also noted, "[v]arious courts have observed

that such action improperly assumes the executive or prosecutorial

power and, therefore, violates the doctrine of separation of

powers." Ibid.

Here, the second judge not only interfered in plea

negotiations, he directed the prosecutor to consummate the plea

14 A-3969-16T1 by preparing the appropriate documents. In doing so, the second

judge improperly assumed the executive or prosecutorial power.

For this reason, his orders must be vacated.

To be sure, the second judge had valid concerns about the

State including disbarment as part of a plea agreement. A

prosecutor is not necessarily precluded from negotiating as part

of a plea a result that cannot be obtained under statutory or

other authority. See State v. Hupka, 203 N.J. 222, 242 (2010)

(explaining under the forfeiture of public office statute,

N.J.S.A. 2C:51-2, "when a defendant is charged with a crime that

might be regarded as involving or touching his or her public

position, the State should, likewise, require an allocution that

either establishes the connection between the crime and the

position to enable the court to sustain a subsequent forfeiture

and disqualification order, or, alternatively, should negotiate a

voluntary disqualification from a future position" (emphasis

added)). Such authority notwithstanding, "[t]he State

Constitution declares '[t]he Supreme Court shall have jurisdiction

over the admission to the practice of law and the discipline of

persons admitted.'" Robertelli v. N.J. Office of Atty. Ethics,

224 N.J. 470, 476 (2016) (second alteration in original) (quoting

N.J. Const., art. VI, § 2, ¶ 3).

15 A-3969-16T1 We need not, however, address whether the State, as part of

a plea agreement, can insist on an attorney's disbarment, because

no such plea agreement was presented to the second judge. If it

had been, and if the judge deemed it contrary to the interests of

justice, the judge had the authority to disapprove it. State v.

Brimmage, 271 N.J. Super. 369, 374 (App. Div. 1994). He did not

have the authority to impose a modified plea agreement.

For the foregoing reasons, we vacate the orders granting

reconsideration and enrolling defendant in PTI. We remand the

matter for trial.

16 A-3969-16T1