STATE OF NEW JERSEY VS. PAUL DOUGHERTY 18-10-2467, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3079-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL DOUGHERTY,
Defendant-Appellant.
_______________________
Submitted February 5, 2020 – Decided January 15, 2021
Before Judges Fuentes, Haas and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Accusation No. 18-10-2467.
Edward Crisonino, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Brian Uzdavinis, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant Paul Dougherty appeals from the order of the Criminal Part
which upheld the Attorney General's objection to his admission into the Pretrial
Intervention (PTI) program. We affirm.
At all times relevant to this case, defendant was an attorney and an elected
Commissioner of Haddon Township. 1 He served in this elected position from
May 1, 2013 to July 31, 2018. On October 17, 2018, defendant waived his right
to have the charges against him presented to a Grand Jury and pled guilty,
pursuant to a negotiated agreement with the State, to an accusation charging him
with third degree conspiracy to confer an unlawful benefit to a public servant,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:27-11(b).
Defendant admitted that during the time he served as an elected
Commissioner of the Township of Haddon, he received $7,106 from a law firm
as a fee2 for referring an employee of the Township in litigation against the
1
Haddon Township is a municipality organized under the Walsh Act, N.J.S.A.
40:70-1 to N.J.S.A. 40:76-27. Under this form of government, a municipality is
governed by a board of commissioners who have "all . . . executive,
administrative, judicial and legislative powers[.]" N.J.S.A. 40:72-2. See City of
Wildwood v. DeMarzo, 412 N.J. Super. 105, 111-12 (App. Div. 2010).
2
See Rule 1:39-6(d).
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Township, in violation of N.J.S.A. 2C:27-11(b).3 Although the appellate record
does not contain the transcript of the plea hearing, the Judgment of Conviction
reflects defendant pled guilty to this offense on July 30, 2018.
On October 31, 2018, defendant submitted an application to the vicinage's
Criminal Division Manager for admission into PTI. In a letter addressed to the
trial judge dated November 1, 2018, the Deputy Attorney General (DAG) who
represented the State objected to defendant's admission into PTI based on: (1)
the serious nature of the offense; and (2) the consequential erosion of the public's
faith in the impartiality of our criminal justice system. The State also relied on
the presumption against admission into PTI codified in Rule 3:28-1(e)(1) for
offenses in which "a public officer or employee . . . is charged with a crime that
involved or touched the public office or employment." To rebut this
presumption of ineligibility, the applicant must present evidence of
extraordinary and compelling circumstances. R. 3:28-1(e)(3). The State argued
3
On May 8, 2020, the Supreme Court formally reprimanded defendant for
violation of RPC 8.4(b) (commission of a criminal act that reflects adversely on
the lawyer's honesty, trustworthiness or fitness as a lawyer); and RPC 8.4(c)
(conduct involving dishonesty, fraud, deceit or misrepresentation). In re
Dougherty, 241 N.J. 541 (2020).
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defendant had not presented any grounds to satisfy this high standard for
admission into PTI.
The State concluded its objection to defendant's admission into PTI by
noting that:
the defense had been advised, we were alternatively
prepared to present an indictment to a State Grand Jury
charging second-degree Official Misconduct, N.J.S.A.
2C:30-2, which carries a mandatory minimum five-year
prison term. Moreover, . . . defendant's plea was the
result of a negotiated agreement with the State that
involved . . . defendant's acknowledgment of guilt and
entry into a consent order with a lifetime ban on public
office/employment, in exchange for which the State
would agree to recommend a non-custodial term of
probation. This agreement was further acknowledged
on the record by the defense that same day.
The State's appendix contains a two-page document which appears to be
a copy of defendant's PTI application. The first page is labeled: "Application
for PTI," and contains three printed vertical columns that run the length of the
page. Each column contains a heading that describes the process and eligibility
requirements for admission into PTI. The applicant is apprised that he or she
will be interviewed by "a staff member of the Criminal Division of the Superior
Court." This staff member will prepare a written report "detailing the decision
for admittance or rejection."
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The appellate record does not include a copy of the Criminal Division staff
member's report containing his or her assessment of defendant's suitability for
admission into PTI. See R. 3:28-6(b).4 This court has made clear that the PTI
program is designed to require the participation of both the Criminal Division
Manager and the prosecutor. State v. Rizzitello, 447 N.J. Super. 301, 310-11
(App. Div. 2016). Although Rizzitello was decided before the Supreme Court
adopted Rule 3:28-1, the underlying principle requiring input and participation
from these two branches of government remain a vital and mandatory part of
this diversionary program.
We thus included the following admonition in Rizzitello: "We expect the
trial court to enforce this aspect of the PTI Program's application process to
ensure the reviewing judge has a complete record before deciding a defendant's
challenge to the denial of his or her application." Id. at 311. Here, the trial court
failed to enforce this requirement. However, the record contains sufficient facts
to enable us to reach a final conclusion.
On January 14, 2019, the State responded to defendant's petition to the
trial court for admission into PTI. The State's submission applied the facts of
4
Rule 3:28-1 to -10 repealed Rule 3:28. The Supreme Court adopted the new
Rules on July 15, 2017, with an effective date of July 1, 2018.
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the case to the seventeen statutory factors in N.J.S.A. 2C:43-12(e). The DAG
argued that factors (1), the nature of the offense; and (2), the facts of the case,
provided sufficient grounds to support the State's objection to defendant's
admission into PTI. The DAG provided the following summary of these salient
facts:
In sum, defendant is an attorney who, while serving as
municipal prosecutor in multiple locations, also held
the elected position of township commissioner in
Haddon Township. When contacted in 20l3 by a
township employee for assistance with some
employment-related issues, defendant, as a township
commissioner, directed that employee to a law firm to
sue the township. The employee followed defendant's
guidance, retained the law firm that defendant had
recommended and sued the township.
When the matter ultimately settled in 2015, the law firm
that September sent defendant a referral fee of $7,106,
which defendant accepted and deposited into a bank
account. Defendant later returned that fee to the law
firm, but only after being approached by Division of
Criminal Justice detectives who advised him of their
investigation into the matter in July 2018.
Against these facts, the State argued that factor N.J.S.A. 2C:43-12(e)(3),
defendant's motivation and age, supported its position. Defendant was in his
forties when he committed this crime. The State also found the following factors
supported its decision to reject defendant's application for admission into PTI.
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Factor (5), the nonexistence of personal problems or character flaws; (6), the
crime was not related to a condition or situation conducive to change through
participation in the PTI program; and (7), the need to deter public corruption
and promote public confidence in elected officials.
The State conceded that factors N.J.S.A. 2C:43-12(e)(8) through (13)
were not relevant to this case. However, factor (14), striking a proper balance
between the nature of the crime and the value of supervisory treatment, weighed
in favor of prosecution. The State argued there was "a strong need to send a
message that public officials who use their official positions and official powers
for personal benefit will be prosecuted." The State conceded that factors (15)
and (16) were not relevant. Finally, factor (17) requires the State to consider
whether the harm done to society by foregoing criminal prosecution outweighs
the benefits to society in allowing an offender to participate in a supervisory
treatment program. The State argued factor (17) strongly supports denying
defendant admission into PTI.
The State concluded its statement in opposition as follows:
The State's objection is based upon a consideration of
the relevant factors in N.J.S.A. 2C:43-12e and those
factors have been evaluated on both a quantitative and
qualitative basis. The appropriate and relevant factors
have been considered, no irrelevant Factors have been
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considered, and the consideration of the relevant factors
is sound. It is the State's conclusion that defendant, Mr.
Dougherty, is not an appropriate candidate for PTI.
Defendant's appeal of the State's rejection of his PTI application came for
oral argument before the trial court on February 7, 2019. Defense counsel
argued defendant did not act in a corrupt manner nor violate the essential duties
of his elected office when he referred a municipal employee to a law firm for
legal advice. As framed by defense counsel:
The case arises because an employee of the township
where he was a commissioner felt that she had a
potential whistle blower suit against the police
department. She consulted with [defendant] and he
referred her to an attorney who eventually brought a
case and the township insurance company settled that
case based on what they viewed the merits of that case.
....
So the money here comes from the attorney for the
[employee]. That was paid by the township insurance
company, not by the township. It was paid by the
township insurance company based on the merits of the
claim brought against the township police department,
not based on anything Mr. Dougherty did. So there is
no indication whatsoever that the township, the citizens
of the township, were in any way injured or paid
anything as a result of Mr. Dougherty’s conduct.
The DAG presented a starkly different account of defendant's conduct and
the implications that a reasonable person can infer from it. After a municipal
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employee received what she believed to be an unsatisfactory response from
Human Resources, the aggrieved municipal employee approached defendant in
his official role as a Township Commissioner. The employee spoke with
defendant "briefly" about her situation and asked him for "help." As explained
by the DAG:
based on her statements . . . that were put forth in
discovery to the court and the defense . . . she asked
[defendant] for his help with the suspension. She didn’t
know why she had been suspended. And at that point
the defendant advised . . . this township employee that
it sounded like she had a basis for a (indiscernible)
lawsuit and she should go talk to attorneys at a specific
law firm[.]
The DAG noted that defendant received a letter from that specific law firm
in May 2013 "thanking him for the referral." According to the DAG, the law
firm's letter was "basically their acknowledgement that this was an official
referral from one legal office to another." When the litigation was "resolved" in
2015, defendant received a letter from the law firm advising him of the facts
that ended the litigation and transmitting a check payable to defendant in the
amount of $7,106, constituting his referral fee pursuant to Rule 1:39-6(d).
In July 2018, detectives from the Criminal Division of the Attorney
General's Office formally advised defendant that there was an ongoing
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investigation concerning this matter. A "few days" after this interaction with
the detectives, defendant returned the $7,106 to the law firm. The DAG
represented to the trial court that the State was prepared to charge and prosecute
defendant for second degree official misconduct under N.J.S.A. 2C:30-2(a),
which carries a mandatory minimum sentence of five years imprisonment.
After intense negotiations, the State allow defendant to plead guilty to thi rd
degree conspiracy to confer an unlawful benefit on a public official. N.J.S.A.
2C:5-2 and N.J.S.A. 2C:27-11(b).
The trial judge denied defendant's request to admit him to PTI over the
State's objection. The judge began his analysis by noting that the crime
defendant pled guilty to carries a presumption against admission into PTI. He
also reviewed the relevant statutory factors in N.J.S.A. 2C:43-12(e) as well as
the Supreme Court's decision in State v. Roseman, which reaffirmed that "PTI
is essentially an extension of the charging decision, therefore the decision to
grant or deny PTI is a 'quintessentially prosecutorial function.'" 221 N.J 611,
624 (2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)). Consequently,
a judge reviews a decision of the prosecutor to reject a defendant's PTI
application with great deference. A judge is empowered to admit a defendant
into PTI over the prosecutor's objection only if the record shows "clearly and
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convincingly" that the prosecutor's decision constituted a "patent and gross
abuse of discretion." Wallace, 146 N.J. at 582.
Here, the trial judge found defendant did not meet this burden of proof.
The judge also found that the State duly considered all of the relevant factors
under N.J.S.A. 2C:43-12(e). On February 19, 2019, the trial court sentenced
defendant to a two-year term of probation, conditioned upon defendant
surrendering his firearms purchaser identification card, undergoing a substance
abuse evaluation and treatment at the discretion of his probation officer,
submitting to periodic drug screening, and providing a DNA sample.
On appeal, defendant raises the following argument:
POINT ONE
THE PROSECUTOR'S DENIAL OF THE
DEFENDANT'S PTI APPLICATION WAS A
PATENT AND GROSS ABUSE OF DISCRETION.
We reject this argument and affirm. The Supreme Court recently
reaffirmed the standard of review of a trial court's decision to uphold the
prosecutor's rejection of a defendant's application for admission into 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
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in judgement. 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 Pretrial
Intervention.
[State v. Johnson, 238 N.J. 119, 129 (2019) (quoting
Roseman, 221 N.J. at 625)].
The record we have described at length here reveals that defendant has not
satisfied any of these standards. Defendant committed a crime that directly
undermined the public's faith in the impartiality of elected officials. The trial
judge correctly found defendant did not rebut the presumption against admission
into PTI codified in Rule 3:28-1(e)(1).
Affirmed.
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