STATE OF NEW JERSEY VS. MICHELLE ROSALES-SERRANO(15-02-0424, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2684-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHELLE ROSALES-SERRANO,

Defendant-Appellant.
______________________________

Argued May 4, 2017 – Decided June 12, 2017

Before Judges Whipple and Mawla.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 15-
02-0424.

Eric M. Mark argued the cause for appellant
(Law Offices of Eric M. Mark, attorney; Mr.
Mark, on the brief).

Camila Garces, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney; Ms.
Garces, on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction for third-

degree theft by deception after entering a guilty plea. Defendant
argues the prosecutor's rejection of defendant from admission into

pretrial intervention (PTI) was an abuse of discretion because it

lacked consideration of all the relevant factors. We disagree

that the judge's denial of her PTI appeal was an error in judgment.

We affirm.

We discern the following facts from the record. Defendant

was employed as a secretary at a surgical medical practice. On

December 3, 2013, the doctor who owned the practice reported to

police that defendant had stolen funds from the practice by either

depositing checks directly into her own account or electronically

transferring funds from the doctor's account into her own. Police

investigation showed defendant had also applied for credit in the

doctor's name. Defendant and a co-defendant were arrested

following the investigation. On February 25, 2015, defendant was

indicted for third-degree offenses, including conspiracy, N.J.S.A.

2C:5-2; theft by deception, N.J.S.A. 2C:20-4(b); theft by unlawful

taking, N.J.S.A. 2C:20-3(a); receiving stolen property, N.J.S.A.

2C:20-7(a); forgery, N.J.S.A. 2C:21-1(a)(3); and wrongful

impersonation, N.J.S.A. 2C:21-17(a)(4).

Defendant applied for PTI, and on or about July 8, 2015,

Essex County Probation recommended her for admission. However,

the prosecutor objected by a letter, which evaluated the seventeen

relevant criteria listed in N.J.S.A. 2C:43-12(e), finding

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aggravating factors 1, 2, 4, 7, 8, 14, 16, and 17 applied. The

prosecutor also considered defendant's background and potential

for rehabilitation and found mitigating factors 3, 9, 10, 12, and

13 applied. The prosecutor concluded defendant had not established

the value of supervisory treatment outweighed the need for

prosecution because the aggravating factors outweighed the

mitigating factors and militated against admission into PTI.

Defendant appealed the PTI determination, which was denied

by the trial judge on August 24, 2015. On the record, the judge

discussed the evidence against defendant, as well as defendant's

arguments for PTI. The judge found the prosecutor properly weighed

the relevant factors, particularly, the large sum of money stolen,

the victim's desire for prosecution, the defendant's position as

a trusted employee during the commission of the theft, and the

two-month period over which the thefts occurred. The judge found

"the prosecutor provided a synopsis of her reasoning and ultimate

conclusions regarding each factor, and also provided supporting

case law to bolster her conclusion as to each factor." The judge

found defendant's conduct demonstrated a continuing pattern of

anti-social behavior, and while expressing sympathy for

defendant's circumstances, he stated, "I cannot conclude [the

denial of PTI] was a clear error in judgment[.] I find that

traditional prosecution is warranted in this case." The judge

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concluded the prosecutor's denial of PTI was not an abuse of

discretion.

Defendant pled guilty to one count of third-degree theft by

deception and was sentenced to two and one half years of probation,

restitution, and community service. This appeal followed.

On appeal, defendant argues the following:

I. THE STATE'S DECISION TO REJECT MS. ROSALES
FROM PTI WAS A GROSS ABUSE OF DISCRETION
BECAUSE IT FAILED TO CONSIDER ALL RELEVANT
FACTORS, IMPROPERLY WEIGHED FACTORS, AND
AMOUNTS TO A CLEAR ERROR IN JUDGMENT.

II. THE JUDGE'S AFFIRMATION OF THE STATE'S
PTI DENIAL WAS A PRO FORMA RUBBER STAMP THAT
FAILED TO PROPERLY CONSIDER THE REASONS FOR
THE DENIAL, INCLUDING WHETHER THE PROSECUTOR'S
FINDINGS AMOUNTED TO A CLEAR ERROR IN
JUDGMENT.

Admission into the PTI program is based on a favorable

recommendation from the PTI director and the consent of the

prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995); State v.

Roseman, 221 N.J. 611, 621-22 (2015). In determining whether to

recommend or consent to admission, the PTI director and the

prosecutor must consider seventeen factors listed in N.J.S.A.

2C:43-12(e). See also R. 3:28. The statutory list is not

exhaustive, and additional relevant factors may also be

considered. State v. Negran, 178 N.J. 73, 84 (2003).

4 A-2684-15T4
 The scope of judicial review of a prosecutor's determination

is severely limited. Nwobu, supra, 139 N.J. at 246; State v.

Hermann, 80 N.J. 122, 127-28 (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 the prosecutor's decision.

Ibid.

"Judicial review serves only to check the most egregious

examples of injustice and unfairness." Negran, supra, 178 N.J.

at 82 (citation omitted). A reviewing court may order a defendant

into PTI over a prosecutor's objection only if the defendant

"clearly and convincingly establish[es] 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) (alteration in original) (quoting State

v. Leonardis, 73 N.J. 360, 382 (1977)). See also State v.

Benjamin, __ N.J. __, __ (2017) ("[A] defendant may obtain a

hearing to review the prosecutor's decision only after he or she

has demonstrated in a motion that the prosecutor abused his or her

discretion.").

An abuse of discretion is "manifest if defendant shows that

a prosecutorial veto (a) was not premised upon consideration of

all relevant factors, (b) was based upon consideration of

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irrelevant or inappropriate factors, or (c) amounted to a clear

error in judgment." Id. at 583. "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 [PTI]." State v. Bender, 80

N.J. 84, 93 (1979). Absent evidence to the contrary, a reviewing

court must assume the prosecutor considered all relevant factors

in reaching its decision. State v. Dalglish, 86 N.J. 503, 509

(1981) (citing Bender, supra, 80 N.J. at 94).

Applying these principals, we have reviewed defendant's

arguments challenging the prosecutor's rejection of her admission

into PTI. Despite defendant's contentions, we are satisfied the

trial judge conducted proper review of the PTI denial and

determined the prosecutor had provided sufficient reasons in

support of the determination, relying upon all the required

factors. The findings and accompanying reasoning more than

satisfactorily supported the conclusion the prosecutor had acted

within her discretion. We do not consider the determination so

inconsistent with the rationale for PTI that fundamental fairness

requires us to intervene. See Wallace, supra, 146 N.J. at 582-

83. Defendant has not established a patent and gross abuse of

discretion in her rejection.

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 As to defendant's remaining arguments, we find they lack

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Affirmed.

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