STATE OF NEW JERSEY VS. TRACEY A. HUSARENKO (16-06-0220, WARREN 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NOT FOR PUBLICATION WITHOUT THE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-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

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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.

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 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

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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

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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.

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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

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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.

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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.

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