STATE OF NEW JERSEY VS. SANDRA POJAWA (11-10-1772, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-4808-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SANDRA POJAWA,
Defendant-Appellant.
_______________________
Submitted January 25, 2021 – Decided February 9, 2021
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 11-10-1772.
Joseph E. Krakora, Public Defender, attorney for
appellant (Zachary Markarian, Assistant Deputy Public
Defender, of counsel and on the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Craig A. Becker, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from her conviction for third-degree theft by unlawful
taking. Defendant argues it was a patent abuse of discretion to reject her
application for admission into the pre-trial intervention program (PTI) based on
her inability to pay restitution up front. The record does not support this
characterization and instead reflects that defendant's inability to pay was one of
several relevant statutory factors supporting the denial. We therefore affirm.
In October 2011, a Bergen County grand jury charged defendant with
third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. Defendant failed to
appear for her arraignment in late 2011 and the judge issued a bench wa rrant.
Two years later, defendant was picked up on the bench warrant. In August 2013,
defendant appeared for a status conference, however the judge adjourned the
conference to allow the State to determine restitution. The State resolved the
issue and defendant was to appear on September 23, 2013, which she failed to
do, resulting in the issuance of a second bench warrant.
In May 2018, police picked defendant up on the second bench warrant as
a result of a motor vehicle stop. The judge held a status conference on May 14,
2018 and set a June date for defendant's next appearance. Thereafter, defendant
applied for PTI. On June 25, 2018, defendant failed to appear again and
represented to her attorney that she had a family medical issue, which she failed
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to proffer documentation of, thereby resulting in the issuance of a third bench
warrant.
Although the PTI director recommended accepting defendant's
application, in August 2018, the prosecutor objected. On September 24, 2018,
the judge heard argument on defendant's appeal from the prosecutor's denial of
her application and upheld that determination.
Defendant then pled guilty to the charge. The plea agreement reflected
the State would recommend a five-year probationary term, and restitution in the
amount of $15,000 to be paid in monthly increments of $50. The judge
sentenced defendant to three-years' probation and imposed the fines.
On appeal, defendant raises the following issue for this court's
consideration:
POINT I
THE TRIAL [JUDGE] ERRED IN FINDING THE
STATE'S DENIAL OF [DEFENDANT'S]
APPLICATION FOR [PTI], WHICH
IMPERMISSIBLY OPPOSED HER ENTRY INTO
THE PROGRAM ON THE BASIS OF HER
INABILITY TO PAY FULL RESTITUTION
UPFRONT, WAS NOT AN ABUSE OF
DISCRETION.
Deciding whether to permit a defendant to divert to PTI "is a
quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582
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(1996), for which a prosecutor is given "broad discretion," State v. K.S., 220
N.J. 190, 199 (2015). It involves the consideration of the non-exhaustive list
of seventeen statutory factors, enumerated in N.J.S.A. 2C:43-12(e), in order to
"make an individualized assessment of the defendant considering his or her
amenability to correction and potential responsiveness to rehabilitation." State
v. Roseman, 221 N.J. 611, 621-22 (2015) (citations and internal quotation
marks omitted). "These factors include 'the details of the case, defendant's
motives, age, past criminal record, standing in the community, and employment
performance[.]'" Id. at 621 (alteration in original) (quoting State v. Watkins,
193 N.J. 507, 520 (2008)).
That said, the scope of this court's review of a PTI rejection is severely
limited and designed to address "only the 'most egregious examples of injustice
and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v.
Leonardis, 73 N.J. 360, 384 (1977)). "In order to overturn a prosecutor's
rejection, a defendant must 'clearly and convincingly establish that the
prosecutor's decision constitutes a patent and gross abuse of discretion,'"
meaning that the decision "has gone so wide of the mark sought to be
accomplished by PTI that fundamental fairness and justice require judicial
intervention." Watkins, 193 N.J. at 520 (first quoting State v. Watkins, 390
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N.J. Super. 302, 305-06 (App. Div. 2007); and then quoting Wallace, 146 N.J.
at 582-583).
An abuse of discretion has occurred where defendant can prove "that the
denial '(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 judgment[.]'" State v. Lee, 437 N.J. Super. 555,
563 (App. Div. 2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). "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 [PTI]." Roseman, 221 N.J. at 625 (quoting
Bender, 80 N.J. at 93). "The extreme deference which a prosecutor's decision
is entitled to in this context translates into a heavy burden which must be borne
by a defendant when seeking to overcome a prosecutorial veto of his [or her]
admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993).
Defendant cannot meet this steep burden here. Defendant's conduct throughout
the litigation demonstrates that she was, and continues to be, a poor candidate
for PTI. Applying these principles, the prosecutor's decision to deny
defendant's entry into PTI does not amount to a "patent and gross" abuse of
discretion.
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A PTI diversion decision is not limited to consideration of the gravity of
the crimes committed but must also consider the applicant's "amenability to
correction" and "responsiveness to rehabilitation." RSI Bank v. Providence
Mut. Fire Ins. Co., 234 N.J. 459, 474 (2018). N.J.S.A. 2C:43-12(e) sets forth
factors encompassing these concepts that prosecutors must contemplate before
accepting or rejecting entry into PTI. While the prosecutor may not make
defendant's ability to pay restitution the sole reason for the denial, there will
be no abuse of discretion when the restitution finding is "only [one] of the many
valid considerations that support defendant's rejection." State v. Imbriani, 291
N.J. Super. 171, 181 (App. Div. 1996). This was the case here.
The prosecutor found factors seven and fourteen, N.J.S.A. 2C:43-
12(e)(7) and (14), "the interests of society and the victims," because defendant,
who was unemployed and suffering from addiction, represented that the she
could only restore $1,800 of the $30,000 in stolen jewelry; a "woefully" small
percentage that would not be in the victim's or society's best interest to accept.
In addition, however, the prosecutor found factors two and eight, 1 and detailed
1
The State acknowledged in its merits brief that defendant's failures to appear
were incorrectly categorized as supporting factor eight, N.J.S.A. 2C:43-
12(e)(8). The State maintains that defendant's failures to appear are s till a
relevant consideration under N.J.S.A. 2C:43-12(e)(3), "the motivation and age
of the defendant."
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each in his statement of reasons. As to factor two, N.J.S.A. 43-12(e)(2), "the
facts of the case," the prosecutor gave weight to the fact that defendant took
advantage of the victim's kindness with an act of greed. As to factor eight,
N.J.S.A. 2C:43-12(e)(8), defendant's "continuing pattern of anti-social
behavior," the prosecutor emphasized that defendant's failure to appear at her
arraignment in 2011, the hearing in September 2013, and her failure to appear
at another hearing in June 2018, reflected a "complete disregard for the
criminal justice system" that rendered her an "[un]acceptable candidate for the
PTI program." These factors supporting the prosecutor's veto make clear that
defendant's inability to pay restitution was not the "sole" factor.
Moreover, defendant's inability to pay restitution was not the
determinative factor supporting the denial. Rather, defendant's pattern of
misconduct and inability to appear was. The prosecutor emphasized in both
his statement of reasons and throughout the litigation that he was giving
substantial weight to defendant's failures to appear and comply, which showed
defendant's lack of motivation to avail herself of PTI. Defendant's failure to
appear more than four times, and her disappearance for a period of years before
being brought in on bench warrants, evidences that she is not "amen[able] to
correction" nor "responsive[] to rehabilitation." See RSI Bank., 234 N.J. at
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474. At the hearing on defendant's motion for admission into PTI over the
prosecutor's objection, the assistant prosecutor argued defendant's conduct
alone should bar her entry into the program, noting that "unless there [is] some
compelling reason why this defendant should get PTI, based on her continued
lack of appearance, the State does not view this candidate as someone who
would be amenable to PTI." The assistant prosecutor made no similar mention
of defendant's inability to pay the restitution in full. The judge therefore
concluded that the prosecutor's denial was "not a patent[] and[] gross abuse of
discretion where the defendant, who was [admitted] in[to] PTI, did not even
make an attempt to comply with the terms of PTI," and that defendant was "not
a candidate for PTI because of the several failures to appear in this court, and,
the absolute failure to even attempt to comply when she was admitted into
PTI." We see no abuse of discretion in the denial.
Affirmed.
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