State of New Jersey v. James Denman

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5329-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. March 27, 2017

JAMES DENMAN, APPELLATE DIVISION

Defendant-Appellant.
—————————————————————————————————————

Argued December 1, 2016 – Decided March 27, 2017

Before Judges Lihotz, Hoffman and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Accusation No.
15-03-0189.

Michael Noriega argued the cause for
appellant (Bramnick, Rodriguez, Grabas,
Arnold & Mangan, LLC, attorneys; Mr.
Noriega, of counsel and on the briefs).

Diana-Marie Laventure, Special Deputy
Attorney General/Acting Assistant
Prosecutor, argued the cause for respondent
(Grace H. Park, Acting Union County
Prosecutor, attorney; Ms. Laventure, of
counsel and on the brief).

The opinion of the court was delivered by

HOFFMAN, J.A.D.

Defendant James Denman, a former Scotch Plains police

officer, appeals from his conviction for third-degree attempted
misapplication of funds, N.J.S.A. 2C:21-15 and 2C:5-1.

Defendant pled guilty to the charge pursuant to a plea agreement

that called for him to receive a probationary term and forfeit

his position as a police officer.1 On May 22, 2015, the court

sentenced defendant to a two-year term of probation and

forfeiture of public office.

On appeal, defendant presents the following arguments

challenging the May 18, 2015 Law Division order, which denied

his appeal of the State's rejection of his PTI application:

THE STATE'S DENIAL OF MR. DENMAN FROM PTI
WAS A PATENT AND GROSS ABUSE OF DISCRETION
ON MULTIPLE LEVELS AND REQUIRES THIS COURT
TO REVERSE AND REMAND THIS MATTER WITH CLEAR
INSTRUCTIONS TO THE PROSECUTOR'S OFFICE FOR
RECONSIDERATION:

A) MR DENMAN DID NOT BREACH THE
PUBLIC TRUST UNDER GUIDELINE
3(i)(4) AS THE OFFENSE DEALT WITH
A PRIVATE ORGANIZATION AND WAS IN
NO WAY CONNECTED TO MR DENMAN'S
SEPARATE PUBLIC EMPLOYMENT.

B) THE STATE'S UNFAIR RELIANCE ON
IRRELEVANT AND INAPPROPRIATE
FACTORS; SUCH AS MR. DENMAN'S
OCCUPATION AS A POLICE OFFICER
RESULTED IN AN UNJUST REJECTION
FROM THE PTI PROGRAM AND MUST BE
REVERSED.

1 In addition, the agreement allowed defendant to appeal the
order denying his motion to compel his admission into the pre-
trial intervention (PTI) program over the prosecutor's
objection.

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 C) NOT ONLY WAS THERE A PATENT AND
GROSS ABUSE OF DISCRETION BY THE
PROSECUTOR, BUT THE PROSECUTOR'S
DECISION COMPLETELY SUBVERTS THE
GOALS UNDERLYING THE PTI PROGRAM;
WHERE A TRUE EVALUATION OF THE
CRITERIA WOULD REVEAL THAT MR.
DENMAN IS AN IDEAL CANDIDATE FOR
THE PROGRAM.

Having reviewed the record in light of the applicable legal

standards, we conclude both the prosecutor and the trial court

mistakenly applied PTI Guideline 3(i). They rejected

defendant's application because the charge of third-degree

attempted misapplication of funds from the Police Athletic

League (PAL) constituted a breach "of the public trust." This

determination is erroneous. Therefore, we reverse the order

denying his PTI appeal and remand for reconsideration of

defendant's application by the prosecutor.

I.

We derive the following facts from the record. In December

2013, defendant faced a financial crisis. A fifty-year-old

father of four children, defendant had one child in college with

a tuition bill due. At the same time, defendant's ex-wife could

not pay her share of the mortgage on the house where his three

high-school-age children lived.

At that point, defendant made, as described in his brief,

"the objectively poor choice of borrowing the money he needed

3 A-5329-14T1
from the Police Athletic League of Scotch Plains." Defendant

had been the treasurer of this non-profit organization for the

previous ten years; therefore, he had access to all of PAL's

banking information and accounts. Defendant contacted PAL's

accountant and asked him if he could borrow money from PAL's

bank account. The accountant advised defendant he needed to

check the PAL by-laws regarding such a loan, and if permitted,

the loan should bear five percent interest. The accountant

further advised defendant he needed to get the approval from the

other PAL board members and sign a promissory note for the loan.

On December 17, 2013, defendant wrote himself a check for

$18,000 from the PAL checking account. Notwithstanding the

accountant's advice, defendant failed to sign a promissory note

or obtain the approval of the other board members. In the memo

portion of the check, defendant wrote "loan at 5%." Defendant

deposited the check into his personal bank account.

Approximately four months later, on April 24, 2014,

defendant paid the loan in full, together with five percent

interest, by issuing a check from his personal checking account

to PAL for $18,440.2 Before issuing the check, defendant called

the accountant to determine the amount of interest he owed. On

2 Defendant repaid the loan by borrowing money from his
pension.

4 A-5329-14T1
the memo portion of the repayment check, defendant wrote "repay

+ interest."

On May 30, 2014, over one month after defendant paid off

the loan, the Union County Prosecutor's Office received an

anonymous phone call reporting defendant stole $24,000 from PAL.

Following this phone call, an investigation began, and

defendant's unauthorized borrowing from the PAL account became

known. Defendant was subsequently charged with misappropriation

of entrusted funds.

Defendant applied for PTI. On March 10, 2015, the

prosecutor rejected defendant's application. Although noting

defendant had no prior criminal history and worked for fifteen

years with the Scotch Plains Police Department, the prosecutor

concluded the facts and circumstances of defendant's case

warranted rejecting his application:

Pursuant to PTI Guideline 3(i)(4), a
defendant may be rejected from PTI for a
crime that is "a breach of the public trust
where the admission to a PTI program would
deprecate the seriousness of defendant's
crime." In the present matter, defendant, a
police officer, was Treasurer of a nonprofit
group that relies largely upon parental
donations for its revenue — the Scotch
Plains PAL. The PAL is an organization with
a goal of uniting the local police and the
local community through youth sports
programs. Defendant, through his status as
Treasurer of the PAL, embezzled $18,000 from
the organization leaving it underfunded for
a period of four months. The seriousness of

5 A-5329-14T1
 this offense coupled with defendant's
occupation as a law enforcement officer
whose job it is to uphold the law, far
outweighs any positive rehabilitative
factors that may be present in this matter.
The public interest is best served by this
offense being prosecuted, and not diverted.

Defendant appealed his PTI denial to the Law Division,

arguing the judge should reject the position that his crime

involved a breach of the public trust and overrule the

prosecutor's decision. The judge declined, explaining:

The [c]ourt finds that the State could
properly determine that the defendant
breached the public trust based on his
breach of his fiduciary duties as the
Treasurer of the PAL. The PAL's purpose –
that is, its whole reason for existence as
described on its website Home Page – is a
non-profit organization – a non-profit,
police youth organization with a mission to
reduce juvenile delinquency and promote
positive interaction between law enforcement
and its community.

After concluding defendant's conduct constituted "certainly a

breach of public trust," and finding the State otherwise based

its decision "upon a consideration of all relevant factors," the

judge denied defendant's motion. This appeal followed.

II.

We first address our standard of review. "Issues

concerning the propriety of the prosecutor's consideration of a

particular [PTI] factor are akin to 'questions of law[.]'"

State v. Maddocks, 80 N.J. 98, 104 (1979). "Consequently, on

6 A-5329-14T1
such matters an appellate court is free to substitute its

independent judgment for that of the trial court or the

prosecutor should it deem either to have been in error." Id. at

105.

While we exercise de novo review over the propriety of

considering a certain PTI factor, we afford prosecutors "broad

discretion to determine if a defendant should be diverted."

State v. K.S., 220 N.J. 190, 199 (2015) (citation omitted).

This discretion arises out of the prosecutor's charging

authority. Id. at 200. "Accordingly, to overturn a

prosecutor's decision to exclude a defendant from the program,

the defendant must 'clearly and convincingly' show that the

decision was a 'patent and gross abuse of . . . discretion.'"

Ibid. (alteration in original) (quoting State v. Wallace, 146

N.J. 576, 582 (1996)).

We extend "enhanced" deference to the prosecutor's

decision. State v. Negran, 178 N.J. 73, 82 (2003) (quoting

State v. Baynes, 148 N.J. 434, 443-44 (1997)). The court's

"severely limited" scope of review is designed to address "only

the 'most egregious examples of injustice and unfairness.'"

Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

Although we rarely overturn the rejection of a PTI application,

the prosecutor's discretion is not unlimited. State v. Brooks,

7 A-5329-14T1
175 N.J. 215, 225 (2002), overruled in part by K.S., supra, 220

N.J. at 199.

The PTI statute requires prosecutors to consider a non-

exclusive list of seventeen criteria. N.J.S.A. 2C:43-12(e).

These criteria "include 'the details of the case, defendant's

motives, age, past criminal record, standing in the community,

and employment performance[.]'" State v. Roseman, 221 N.J. 611,

621 (2015) (alteration in original) (quoting State v. Watkins,

193 N.J. 507, 520 (2008)). In rendering the decision, the

prosecutor must "make an individualized assessment of the

defendant" and consider whether the defendant is amenable to

rehabilitation. Id. at 621-22 (citing Watkins, supra, 193 N.J.

at 520). The prosecutor may not weigh inappropriate factors or

ignore appropriate factors. K.S., supra, 220 N.J. at 200.

To meet the "gross and patent abuse of discretion" standard

to justify supplanting the prosecutor's decision, a defendant

must satisfy one of three factors and must also show the

prosecutor's decision undermines the purposes of PTI:

Ordinarily, an abuse of discretion will be
manifest if defendant can show that a
prosecutorial veto (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 of judgment. . . . 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

8 A-5329-14T1
 error complained of will clearly subvert the
goals underlying Pretrial Intervention.

[Roseman, supra, 221 N.J. at 625 (alteration
in original) (quoting State v. Bender, 80
N.J. 84, 93 (1979)).]

However, when a defendant has not met this high standard,

but nonetheless has demonstrated an abuse of discretion, a

remand is appropriate.

When a reviewing court determines that the
"prosecutor's decision was arbitrary,
irrational, or otherwise an abuse of
discretion, but not a patent and gross
abuse" of discretion, the reviewing court
may remand to the prosecutor for further
consideration. Remand is the proper remedy
when, for example, the prosecutor considers
inappropriate factors, or fails to consider
relevant factors.

[K.S., supra, 220 N.J. at 200 (internal
citation omitted) (quoting State v. Dalglish,
86 N.J. 503, 509 (1981)).]

As the Court explained, this middle ground preserves the

exercise of the prosecutor's discretion, while assuring the

proper application of the PTI standards. Ibid.

III.

Applying these principles, we examine defendant's argument

challenging the prosecutor's rejection of his PTI application.

The prosecutor relied on the presumptions set forth in the

Guidelines governing PTI. See Pressler and Verniero, Current

N.J. Court Rules, Guideline 3(i) on R. 3:28 (2017) (hereinafter

9 A-5329-14T1
Guideline 3(i)). Guideline 3(i) applies a presumption against

PTI eligibility for those defendants charged with crimes of

violence, organized crime, breach of the public trust, or with

some of the most serious drug-related offenses. A defendant

charged with one of the crimes included in Guideline 3(i) faces

a significant hurdle to PTI admission, which other applicants

need not surmount.

In rejecting defendant, the prosecutor maintained

defendant's unauthorized use of PAL's funds constituted a

"breach of the public trust" because "defendant, a police

officer, was Treasurer" of PAL, "an organization with a goal of

uniting the local police and the local community through youth

sports programs." The prosecutor further emphasized the

criminal conduct occurred despite "defendant's occupation as a

law enforcement officer whose job it is to uphold the law."

A breach of the public trust occurs when a governmental

agency or officer, vested with the public trust, causes harm to

the public by breaching its trust. See generally Bender, supra,

80 N.J. 84. Such a breach occurs when two elements are present:

(1) the defendant serves as a public trustee at the time of the

alleged offense, and (2) the defendant causes direct injury to

the public at large in his or her role as a public trustee. Id.

at 96. Therefore, a individual engaging in such conduct must

10 A-5329-14T1
owe some sort of fiduciary duty directly to the public at large

in order to breach the public trust under Guideline 3(i)(4).

Following our review, we conclude the trial judge erred in

adopting the prosecutor's more expansive application of breach

of the public trust to PAL. It is unrefuted defendant was a

volunteer for PAL at the time of his alleged offense. The

operating funds PAL received were primarily from fees collected

from parents or caregivers whose children participate in its

sponsored sporting events. As a non-profit organization, PAL

also has the ability to fundraise. However, in this case, the

record contains no evidence PAL received any funding from any

public entities nor did the State assert any connection between

public money and PAL. Without such a connection, we discern no

basis for concluding defendant committed "a breach of the public

trust" as contemplated by Guideline 3(i)(4).

Further, we reject the application of the breach of the

public trust guideline because of defendant's employment.

Defendant did not engage in unlawful conduct in his capacity as

a police officer nor did his role as an officer facilitate the

crime. The record does not support a conclusion a breach of

the public trust occurred when defendant improperly borrowed

funds from PAL. Accordingly, the mistaken application of

Guideline 3(i)(4) to a defendant who was not charged with one of

11 A-5329-14T1
the included crimes constitutes a gross and patent abuse of the

prosecutor's discretion. See Roseman, supra, 221 N.J. at 627;

Bender, supra, 80 N.J. at 93.

The prosecutor and trial judge erroneously applied the

presumption of PTI ineligibility to defendant's pending charge

of third-degree attempted misapplication of funds from PAL,

N.J.S.A. 2C:21-15 and 2C:5-1. The order rejecting defendant's

PTI appeal is reversed, and the matter is remanded. The

prosecutor must consider defendant's PTI application ab initio.

See Roseman, supra, 221 N.J. at 629; Bender, supra, 80 N.J. at

97.

Reversed and remanded.

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