State of New Jersey v. James Denman , 449 N.J. Super. 369 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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.
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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
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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
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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,
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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
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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
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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
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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
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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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