STATE OF NEW JERSEY VS. KRISTIN M. HANSENÂ (14-01-0100, MERCER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1637-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KRISTIN M. HANSEN,
Defendant-Appellant.
________________________________
Submitted November 9, 2017 – Decided November 29, 2017
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
14-01-0100.
Robin Kay Lord, attorney for appellant.
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Laura Sunyak,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Kristin Hansen appeals from the March 29, 2016
order confirming the prosecutor's denial of her application for
entry into the Pretrial Intervention Program (PTI). Because we
agree with the trial court that defendant has not established that
the prosecutor's decision to deny PTI was a patent and gross abuse
of his discretionary authority, we affirm.
A department store's loss prevention supervisor observed
defendant pushing her child in a stroller. The security officer
continued to watch as she shopped, placed numerous items into her
stroller, went into a fitting room, and moved the merchandise into
her handbag and diaper bag. Defendant then attempted to exit the
store without paying for the merchandise. She was stopped by
security and identified herself as a lieutenant at the Middlesex
County Corrections Center. The merchandise removed from her
stroller and purse was valued at over $1600. Defendant was
arrested after the police reviewed the store's surveillance
system, which confirmed the security officer's account of events.
Defendant was charged in an indictment with third-degree
shoplifting, in violation of N.J.S.A. 2C:20-11(b)(2). Her
application for entry into PTI was approved by the Criminal Case
manager. In her PTI interview, defendant stated she was shopping
at the store when she was stopped by a store employee who
mistreated her. She admitted that she told the security officer
of her position at the corrections center. She said she went near
the exit doors but denied leaving the store with any merchandise.
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In his review of the PTI application, the prosecutor agreed
to admit defendant into the program, conditioned on her resigning
from her public employment. Noting that "PTI decisions are
primarily individualistic in nature and . . . [he] must consider
an individual defendant's features that bear on his or her
amenability to rehabilitation," the prosecutor reviewed the
application with defendant's employment as a "sworn law
enforcement officer in mind."
The State found defendant was an appropriate candidate for
PTI if she were an ordinary citizen, but not as a law enforcement
officer. The prosecutor stated:
[t]he State believes, due to Defendant's
employment, this crime can be viewed as a
breach of the public trust. Law enforcement
officials should be held to a higher standard,
and it can be said they are always on duty and
are expected to avoid breaking the law.
Additionally, Defendant's consistent failure
to fully accept responsibility for her actions
and to mitigate her offense supports the
State's contention that she would not be
responsive to rehabilitation.
The State, therefore, conditioned defendant's entry into PTI upon
the forfeiture of her job. Defendant appealed the decision to the
trial court.
In a comprehensive written opinion, the trial judge
considered the written submissions and oral argument of counsel.
He found that the State's position was "carefully reasoned and
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logical." As defendant was employed as a county corrections
officer at the time of this offense, the judge noted that she was
empowered under the applicable statute "to act as [an officer] for
the detection, apprehension, arrest, and conviction of offenders
against the law." N.J.S.A. 2A:154-3(a). In finding that it was
not a patent and gross abuse of discretion for the State to hold
defendant to a higher standard, the judge said that "[t]he State
reasonably concluded that the defendant's conduct was so
inconsistent with the inherent duties of a law enforcement officer
that she could no longer be permitted to serve in that position."
The judge considered and rejected defendant's argument that
under State v. DeMarco, 107 N.J. 562, 571 (1987), the prosecutor
could not impose such a condition. Although finding DeMarco
factually different from the circumstances here, the judge noted
that the Supreme Court sanctioned the imposed condition, that the
defendant resign from his public employment. Defendant's appeal
was denied.
In this appeal, defendant argues that the trial court erred
in finding the State's denial of her application for PTI was not
a patent and gross abuse of discretion. We disagree and affirm.
Our scope of review of a prosecutor's decision to deny
admission to PTI is "severely limited." State v. Negran, 178 N.J.
73, 82 (2003). We afford the prosecutor's decision great
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deference. State v. Wallace, 146 N.J. 576, 582, 589 (1996). A
trial judge can only overturn a prosecutor's decision to deny PTI
upon finding a "patent and gross" abuse of discretion. State v.
Kraft, 265 N.J. Super. 106, 112-13 (App. Div. 1993).
Our review of a PTI application exists "to check only the
most egregious examples of injustice and unfairness." State v.
Nwobu, 139 N.J. 236, 246 (1995) (quoting Kraft, supra, 265 N.J.
at 111). In short, it is expected that a prosecutor's decision
to reject a PTI applicant "will rarely be overturned." Wallace,
supra, 146 N.J. at 585 (quoting State v. Leonardis, 73 N.J. 360,
380 n.10 (1977)). Absent evidence to the contrary, a reviewing
court must assume that "the prosecutor's office has considered all
relevant factors in reaching the PTI decision." Nwobu, supra, 139
N.J. at 249 (citing State v. Dalglish, 86 N.J. 503, 509 (1981)).
Defendant argues on appeal, as she did to the trial judge,
that it was a patent and gross abuse of discretion for the State
to condition her admission into PTI on the forfeiture of her
employment because "there is no correlation between the forfeiture
of employment condition and the seriousness of the shoplifting
offense." Therefore, she contends that the forfeiture condition
does not further the rehabilitative goals of PTI.
It is undisputed that the prosecutor considered all of the
criteria enumerated in N.J.S.A. 2C:43-12(e). In fact, the State
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agreed that if defendant were to be considered as an ordinary
citizen, she would be eligible for admission into the program.
However, Guideline 3 promulgated under Rule 3:28, also lists a
number of factors for a prosecutor's consideration. Section (i)
requires an assessment of the nature of the offense. "If the
crime was . . . a breach of the public trust where admission to a
PTI program would deprecate the seriousness of defendant's crime,
the defendant's application should generally be rejected." R.
3:28. After its consideration of this guideline, the State
concluded: "Defendant's employment, the circumstances of the
offense, and Defendant's statements in support of her
application," require her admission into PTI be conditioned on her
"forfeiture of public employment."
In DeMarco, supra, 107 N.J. at 565, the defendant police
officer was indicted for aggravated assault after he struck another
man with his nightstick. The prosecutor agreed to DeMarco's entry
into PTI, conditioned on his resignation of his position. Id. at
566. The prosecutor relied on the violent nature of the offense,
DeMarco's continued attempt to justify the assault as an act of
self-defense, and that the offense constituted a breach of the
public trust reposed in the defendant as a police officer. Id.
at 565-66. The Court stated:
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we glean the principle that defendant's
employment as a police officer does not
necessarily preclude his admission into PTI,
but that it is one factor to be considered in
judging him as a whole person . . . . The
prosecutor's reliance on defendant's
employment as a police officer does not
subvert the goals underlying PTI and does not
constitute a "patent and gross" abuse of
discretion. Likewise, the prosecutor is
justified in viewing defendant's conduct as a
breach of the public trust. A police officer
is under a duty to uphold the law and maintain
public safety . . . . [T]he prosecutor was not
compelled to deny defendant admission into
PTI.
[Id. at 569.]
Like in DeMarco, defendant did not accept responsibility for
her actions. She also invoked her position as a high-ranking
officer in the Middlesex County Sheriff's Department when stopped
by the security officer in the store. It was within the bounds
of the prosecutor's discretion to find defendant's actions to be
a breach of the public trust and that she was not amenable to
rehabilitation. Defendant was a law enforcement officer, a
position in which she is held to a higher standard. As an officer,
she was expected to enforce the law as to others and bound to
uphold the law as to herself.
Here, the prosecutorial decision has not "gone so wide of the
mark sought to be accomplished by PTI that fundamental fairness
and justice require judicial intervention." Wallace, supra, 146
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N.J. at 583 (quoting State v. Ridgway, 208 N.J. Super. 118, 130
(Law Div. 1985). Rather, the trial judge applied the appropriate
deferential standard of review to reach a sound decision.
Defendant has not met her burden of proving the prosecutor's
decision was a gross and patent abuse of discretion.
Affirmed.
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