NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3624-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TRACEY A. HUSARENKO,
Defendant-Appellant. ______________________________
Submitted May 21, 2018 – Decided June 12, 2018
Before Judges Rose and Firko.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 16-06-0220.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
After her motion for admission into the pretrial intervention
("PTI") program, defendant pled guilty to third-degree fraudulent
use of a credit card, N.J.S.A. 2C:39-5(b)(1), and third-degree theft, N.J.S.A. 2C:20-3(a). The trial court sentenced defendant
to a five-year probationary term conditioned on the payment of
restitution. Defendant appeals from the judgment of conviction
entered by the trial court on April 11, 2017. We affirm.
We incorporate by reference the pertinent facts set forth in
Judge H. Matthew Curry's comprehensive written opinion denying
defendant's admission into PTI. In sum, between 2011 and 2014,
while working as a bookkeeper at the Land of Make Believe in Hope,
defendant committed multiple acts of theft from her employer,
including use of the company credit card for personal purchases.
The total loss to the company exceeded $60,000. In May 2014, the
company reported defendant's theft to the State Police.
Two years later, defendant was charged in a Warren County
indictment with six counts of third-degree theft and six counts
of third-degree fraudulent use of a credit card. Defendant applied
for admission into PTI. The program director denied defendant's
application, citing a "continued pattern of antisocial behavior"
and the victim's opposition. The prosecutor agreed with that
determination, likewise denying defendant's admission into the
program. In doing so, the prosecutor cited defendant's "continuing
pattern of antisocial behavior," the victim's opposition to
diversionary treatment, "[t]he needs and interests of the victim
and society," and the public need for prosecution outweigh "the
2 A-3624-16T3 value of supervisory treatment." Defendant appealed, and Judge
Curry denied defendant admission into PTI in a September 2, 2016
order that accompanied his written opinion.
On appeal, defendant presents a single argument for our
consideration:
POINT I
IN REJECTING DEFENDANT'S PTI APPLICATION, THE PROSECUTOR FAILED TO CONSIDER ALL RELEVANT STATUTORY FACTORS, AS SHE IS REQUIRED TO DO. THEREFORE THE TRIAL COURT ERRED IN FAILING TO REMAND THE MATTER TO THE PROSECUTOR FOR FURTHER CONSIDERATION
Defendant contends the prosecutor's decision was a patent and
gross abuse of discretion, requiring a remand for further
consideration. In particular, she claims that, in rejecting her
PTI application, the prosecutor primarily failed to consider three
of the seventeen factors set forth in N.J.S.A. 2C:43-12(e), as
follows:
(3) The motivation and age of the defendant;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services . . . may be provided more effectively through supervisory treatment; and
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment.
3 A-3624-16T3 In support of her contentions, defendant argues her personal
background supports admission to PTI. Specifically, she was in
her mid-thirties at the time she committed the offenses, and had
never been arrested previously. Defendant was raised by a
physically abusive father, and has been financially independent
since the age of eighteen. She is a single mother and sole
provider for four children, one with special needs. Defendant
thus claims financial pressures led to her committing "a crime of
desperation rather than malice or greed."
The State counters it considered all relevant factors
including those set forth in N.J.S.A. 2C:43-12(e)(3), (5) and (6).
Regarding factor three, the prosecutor acknowledged defendant's
age and noted she "is not a [nineteen] year old person" who stole
from her employer and made a bad decision. Instead, defendant is
older, in a "position of trust, [and] knew exactly what she was
doing." Defendant's actions were methodical and "increased over
the years."
In addressing factor five, the prosecutor observed "PTI only
allows a [thirty-six]-month limit . . . [whereas] probation can
be up to five years." Because defendant was ordered to pay more
than $60,000 in restitution, the prosecutor argued a lengthy
probationary term afforded a longer opportunity to repay the
victim. Further, the prosecutor recognized defendant's actions
4 A-3624-16T3 were not an aberration of her character, but rather "a continuing
pattern of criminal conduct."
As to factor six, the prosecutor stressed the importance of
safeguarding potential future victims from defendant's criminal
behavior. Defendant violated the company's trust by taking
advantage of her position as a bookkeeper for several years. The
prosecutor contended defendant's admission to PTI would allow her
to expunge her criminal record and subsequently place future
employers at risk of becoming potential victims. Because the
commission of the present offenses by a competent middle-aged
adult spanned several years, the prosecutor reiterated that the
offenses were not an aberration of character.
Our Supreme Court has long recognized PTI is a "diversionary
program through which certain offenders are able to avoid criminal
prosecution by receiving early rehabilitative services expected
to deter future criminal behavior." State v. Roseman, 221 N.J.
611, 621 (2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)).
Acceptance into PTI depends on an initial recommendation by the
criminal division manager and the prosecutor's consent. Ibid.
"The assessment of a defendant's suitability for PTI must be
conducted pursuant to the Guidelines set forth in Rule 3:28, along
5 A-3624-16T3 with consideration of factors listed in N.J.S.A. 2C:43-12(e)."
Ibid.
The decision to admit a defendant to PTI, however, is a
"quintessentially prosecutorial function." Id. at 624 (quoting
State v. Wallace, 146 N.J. 576, 582 (1996)). Therefore, the
prosecutor's decision to grant or deny a defendant's PTI
application is entitled to great deference. Ibid. (citing State
v. Leonardis, 73 N.J. 360, 381 (1977)). A trial court may overrule
a prosecutor's PTI determination only when the circumstances
"clearly and convincingly establish that the prosecutor's refusal
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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-3624-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TRACEY A. HUSARENKO,
Defendant-Appellant. ______________________________
Submitted May 21, 2018 – Decided June 12, 2018
Before Judges Rose and Firko.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 16-06-0220.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
After her motion for admission into the pretrial intervention
("PTI") program, defendant pled guilty to third-degree fraudulent
use of a credit card, N.J.S.A. 2C:39-5(b)(1), and third-degree theft, N.J.S.A. 2C:20-3(a). The trial court sentenced defendant
to a five-year probationary term conditioned on the payment of
restitution. Defendant appeals from the judgment of conviction
entered by the trial court on April 11, 2017. We affirm.
We incorporate by reference the pertinent facts set forth in
Judge H. Matthew Curry's comprehensive written opinion denying
defendant's admission into PTI. In sum, between 2011 and 2014,
while working as a bookkeeper at the Land of Make Believe in Hope,
defendant committed multiple acts of theft from her employer,
including use of the company credit card for personal purchases.
The total loss to the company exceeded $60,000. In May 2014, the
company reported defendant's theft to the State Police.
Two years later, defendant was charged in a Warren County
indictment with six counts of third-degree theft and six counts
of third-degree fraudulent use of a credit card. Defendant applied
for admission into PTI. The program director denied defendant's
application, citing a "continued pattern of antisocial behavior"
and the victim's opposition. The prosecutor agreed with that
determination, likewise denying defendant's admission into the
program. In doing so, the prosecutor cited defendant's "continuing
pattern of antisocial behavior," the victim's opposition to
diversionary treatment, "[t]he needs and interests of the victim
and society," and the public need for prosecution outweigh "the
2 A-3624-16T3 value of supervisory treatment." Defendant appealed, and Judge
Curry denied defendant admission into PTI in a September 2, 2016
order that accompanied his written opinion.
On appeal, defendant presents a single argument for our
consideration:
POINT I
IN REJECTING DEFENDANT'S PTI APPLICATION, THE PROSECUTOR FAILED TO CONSIDER ALL RELEVANT STATUTORY FACTORS, AS SHE IS REQUIRED TO DO. THEREFORE THE TRIAL COURT ERRED IN FAILING TO REMAND THE MATTER TO THE PROSECUTOR FOR FURTHER CONSIDERATION
Defendant contends the prosecutor's decision was a patent and
gross abuse of discretion, requiring a remand for further
consideration. In particular, she claims that, in rejecting her
PTI application, the prosecutor primarily failed to consider three
of the seventeen factors set forth in N.J.S.A. 2C:43-12(e), as
follows:
(3) The motivation and age of the defendant;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services . . . may be provided more effectively through supervisory treatment; and
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment.
3 A-3624-16T3 In support of her contentions, defendant argues her personal
background supports admission to PTI. Specifically, she was in
her mid-thirties at the time she committed the offenses, and had
never been arrested previously. Defendant was raised by a
physically abusive father, and has been financially independent
since the age of eighteen. She is a single mother and sole
provider for four children, one with special needs. Defendant
thus claims financial pressures led to her committing "a crime of
desperation rather than malice or greed."
The State counters it considered all relevant factors
including those set forth in N.J.S.A. 2C:43-12(e)(3), (5) and (6).
Regarding factor three, the prosecutor acknowledged defendant's
age and noted she "is not a [nineteen] year old person" who stole
from her employer and made a bad decision. Instead, defendant is
older, in a "position of trust, [and] knew exactly what she was
doing." Defendant's actions were methodical and "increased over
the years."
In addressing factor five, the prosecutor observed "PTI only
allows a [thirty-six]-month limit . . . [whereas] probation can
be up to five years." Because defendant was ordered to pay more
than $60,000 in restitution, the prosecutor argued a lengthy
probationary term afforded a longer opportunity to repay the
victim. Further, the prosecutor recognized defendant's actions
4 A-3624-16T3 were not an aberration of her character, but rather "a continuing
pattern of criminal conduct."
As to factor six, the prosecutor stressed the importance of
safeguarding potential future victims from defendant's criminal
behavior. Defendant violated the company's trust by taking
advantage of her position as a bookkeeper for several years. The
prosecutor contended defendant's admission to PTI would allow her
to expunge her criminal record and subsequently place future
employers at risk of becoming potential victims. Because the
commission of the present offenses by a competent middle-aged
adult spanned several years, the prosecutor reiterated that the
offenses were not an aberration of character.
Our Supreme Court has long recognized PTI is a "diversionary
program through which certain offenders are able to avoid criminal
prosecution by receiving early rehabilitative services expected
to deter future criminal behavior." State v. Roseman, 221 N.J.
611, 621 (2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)).
Acceptance into PTI depends on an initial recommendation by the
criminal division manager and the prosecutor's consent. Ibid.
"The assessment of a defendant's suitability for PTI must be
conducted pursuant to the Guidelines set forth in Rule 3:28, along
5 A-3624-16T3 with consideration of factors listed in N.J.S.A. 2C:43-12(e)."
Ibid.
The decision to admit a defendant to PTI, however, is a
"quintessentially prosecutorial function." Id. at 624 (quoting
State v. Wallace, 146 N.J. 576, 582 (1996)). Therefore, the
prosecutor's decision to grant or deny a defendant's PTI
application is entitled to great deference. Ibid. (citing State
v. Leonardis, 73 N.J. 360, 381 (1977)). A trial court may overrule
a prosecutor's PTI determination only when the circumstances
"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." Id. at 624–25 (quoting Wallace,
146 N.J. at 582). We apply the same standard of review as the
trial court, and review its decision de novo. State v. Waters,
439 N.J. Super. 215, 226 (App. Div. 2015).
To establish a patent and gross abuse of discretion, a
defendant must demonstrate that the prosecutor's decision "(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 judgement" and that "the
prosecutorial error complained of will clearly subvert the goals
underlying [PTI]." Roseman, 221 N.J. at 625 (quoting State v.
6 A-3624-16T3 Bender, 80 N.J. 84, 93 (1979)). The prosecutorial decision must
be "so wide of the mark sought to be accomplished by PTI that
fundamental fairness and justice require judicial intervention."
Wallace, 146 N.J. at 583 (quoting State v. Ridgway, 208 N.J. Super.
118, 130 (Law Div. 1985)).
Here, Judge Curry correctly found the prosecutor's decision
to deny defendant's application for admission to PTI was not a
patent and gross abuse of discretion. In doing so, the judge
recognized "[d]efendant chose to engage in a pattern of anti-
social behavior." He also expressly rejected defendant's argument
that a remand is necessary.
In particular, the judge noted defendant failed to submit
"any mitigating proofs in support of diversion, nor has she shown
amenability to probationary supervision by paying the victim
restitution." See Guidelines for Operation of Pretrial
Intervention in New Jersey, Pressler & Verniero, Current N.J. Court
Rules, Guideline 2 following R. 3:28 at 1290 (2018) (stating that
if a defendant chooses to challenge a rejection from PTI, she must
allege and present "any facts or materials . . . showing compelling
reasons justifying the defendant's admission, and establishing
that a decision against enrollment would be arbitrary and
unreasonable."); see also Nwobu, 139 N.J. at 246 ("[A] defendant
7 A-3624-16T3 must 'clearly and convincingly establish that the prosecutor's
refusal to sanction admission into [a PTI] program was based on a
patent and gross abuse of his discretion.'") (emphasis and citation
omitted).
Further, the judge determined it was "particular[ly]
disconcerting . . . that after [defendant] was confronted about
the missing money, she continued to engage in antisocial behavior
by failing to deposit petty cash in August 2014." The trial court
found "[t]his evidences an ongoing pattern of deception by the
defendant to take advantage of her employer, which was methodical,
required calculation, and involved gradually increased amounts of
money as time went by. Such behavior is not a one-time aberration
of character." We discern no error in the court's determination.
We also note that although the prosecutor did not discuss all
seventeen factors in the decision denying PTI admission, the court
must "presume that a prosecutor considered all relevant factors,
absent a demonstration by the defendant to the contrary." Waters,
439 N.J. Super. at 233 (quoting Wallace, 146 N.J. at 584). Here,
defendant did not rebut that presumption. We are therefore
convinced that the trial court correctly determined the
prosecutor's decision to deny defendant's application for
admission to PTI was not a patent and gross abuse of discretion.
8 A-3624-16T3 As such, the prosecutor's decision was not "so wide of the mark
sought to be accomplished by PTI" that it requires our
intervention.
Affirmed.
9 A-3624-16T3