State v. William Roseman and Lori Lewin (073674) , 221 N.J. 611 ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. William Roseman and Lori Lewin (A-105/106-13) (073674)
Argued March 2, 2015 -- Decided June 18, 2015
SOLOMON, J., writing for a unanimous Court.
In this appeal, the Court considers whether denial of defendants’ applications to Pretrial Intervention (PTI)
by the prosecutor was a patent and gross abuse of discretion.
Defendants William Roseman and Lori Lewin were married from 1992 until 2000, during which time
Roseman was the Mayor of Carlstadt. As his wife, Lewin was entitled to, and received, benefits under Carlstadt’s
plan of health, prescription and dental insurance (Carlstadt’s plan). After their divorce, each was responsible for
their own health insurance pursuant to the divorce decree; Roseman and the son of the marriage would remain on
Carlstadt’s plan and Lewin was to be provided health insurance coverage through her employer. Roseman notified a
Carlstadt payroll clerk, who also served as the Assistant to the Insurance Officer, of the divorce. At the direction of
the clerk, Roseman changed his W-4 tax form to reflect that he was no longer married, but the clerk failed to remove
Lewin’s name from Carlstadt’s plan. As a result, following the divorce, Lewin remained on Carlstadt’s plan, in
addition to her own employer-provided health insurance plan.
In late 2007, while transitioning to a new dental plan, Roseman discovered that Lewin was listed as an
insured under Carlstadt’s plan after the divorce. Roseman promptly reported this error to the town council, had
Lewin removed from the plan, and initiated an internal audit of policy holders to detect other inaccuracies. The
audit revealed that three former wives of city employees and five over-age children, were also improperly listed as
insureds under Carlstadt’s plan. Lewin resubmitted to her employer’s health insurance carrier all of her medical,
prescription and dental claims that had been paid by Carlstadt’s insurance providers after the divorce. As a result,
Carlstadt’s insurance providers were repaid by Lewin’s insurance plan for all re-submitted claims that were not
time-barred, and Lewin made direct restitution to Carlstadt’s insurance providers for the time-barred claims.
In July 2009, Roseman and Lewin were indicted on one count each of third-degree conspiracy, third-degree
theft by deception, and second-degree official misconduct. Even though other individuals also were eligible to
improperly receive benefits under Carlstadt’s plan, Roseman and Lewin were the only individuals prosecuted.
Roseman and Lewin rejected a plea offer and applied for admission into PTI. Initially, Roseman was rejected for
PTI, but after he informed the prosecutor that he would agree to resign and be subject to a lifetime disqualification
from office in exchange for PTI, approval of the agreement was sought and obtained by the prosecutor from the
Attorney General’s office. The prosecutor also expressed his willingness to dismiss the indictment against Lewin if
Roseman was admitted into PTI under those conditions. Subsequently, defendants reconsidered and rejected the
conditioned PTI offer, and Roseman filed a motion to dismiss the indictment.
The trial court dismissed the official misconduct charges, but refused to dismiss the remaining charges.
The State was granted leave to file an interlocutory appeal. The Appellate Division reversed the trial judge and
reinstated the official misconduct counts of the indictment. Defendants efforts to resolve the matter failed because
Roseman refused to resign and agree never to pursue public office in the future as conditions to any agreement. As
a result, the prosecutor rejected in writing both defendants’ PTI applications, citing the presumption against PTI for
second-degree offenses under the Guidelines for PTI provided in Rule 3:28 and eleven of the seventeen factors listed
in N.J.S.A. 2C:43-12(e), including the “nature of the offense,” the “facts of the case,” the “likelihood that the
applicant’s crime is related to a condition or situation that would be conducive to change” through PTI, and
“[w]hether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the
public need for prosecution.”
The trial judge, over the objection of the prosecutor, ordered that Roseman and Lewin be admitted into PTI
1
without conditions, finding that the prosecutor’s decision to deny PTI was a patent and gross abuse of discretion.
The State appealed. In an unpublished opinion, the Appellate Division reversed. The panel found that Roseman had
failed to establish by clear and convincing evidence that the prosecutor patently and grossly abused his discretion.
As to Lewin, the panel remanded the matter for an individualized assessment. The Supreme Court granted
defendants’ petitions for certification. 218 N.J. 274 (2014).
HELD: Defendants have demonstrated extraordinary circumstances to overcome the presumption against Pretrial
Intervention (PTI) for second-degree offenses and there is no factual justification for the application of the factors
set forth by the prosecutor under N.J.S.A. 2C:43-12(e). Denial of defendants’ applications to Pretrial Intervention
(PTI) by the prosecutor was plainly a patent and gross abuse of discretion.
1. The assessment of a defendant’s suitability for PTI must be conducted under the Guidelines for PTI provided in
Rule 3:28, along with consideration of factors listed in N.J.S.A. 2C:43-12(e). Additionally, a PTI determination
requires that the prosecutor make an individualized assessment of the defendant considering his or her “‘amenability
to correction’ and potential ‘responsiveness to rehabilitation.’” State v. Watkins, 193 N.J. 507, 520 (2008) (quoting
N.J.S.A. 2C:43-12(b)). N.J.S.A. 2C:43-12(b) and Guideline 3(i) specify a presumption against PTI for any first- or
second-degree crime and any crime that is a breach of the public trust. Regardless of the statutory presumptions, a
criminal defendant can show that PTI is nonetheless warranted through “facts or materials demonstrating the
defendant’s amenability to the rehabilitation process.” Pressler & Verneiro, Current N.J. Court Rules, Guideline 2
on R. 3:28, at 1167. Presumptions against PTI reflect an assumption that certain defendants “have committed
crimes that are, by their very nature, serious or heinous and with respect to which the benefits of diversion are
presumptively unavailable.” Watkins, supra, 193 N.J. at 523. Accordingly, this Court has stated that overcoming
these presumptions requires showing “something extraordinary or unusual” about the defendant’s background. State
v. Nwobu, 139 N.J. 236, 252-253 (1995). (pp. 9-12)
2. To overcome the “presumption of incarceration for first- and second-degree offenders,” there must be “‘truly
extraordinary and unanticipated circumstances’ when the sentencing court finds that a ‘serious injustice’ exists.”
Nwobu, supra, 139 N.J. at 252. In Nwobu, the Court made clear that this is a fact-sensitive analysis that requires
consideration of “idiosyncratic” circumstances demonstrating that denial of PTI has resulted in a “serious injustice.”
Id. at 252. Even if “extraordinary and unusual” circumstances exist to overcome the presumption against admission
into PTI for certain offenses, this Court has recognized that PTI is essentially an extension of the charging decision,
therefore the decision to grant or deny PTI is a “quintessentially prosecutorial function.” State v. Wallace, 146 N.J.
576, 582 (1996). Trial courts may overrule a prosecutor’s decision to accept or reject a PTI application only when
the circumstances “‘clearly and convincingly establish that the prosecutor’s refusal to sanction admission into the
program was based on a patent and gross abuse of . . . discretion.’” Ibid. (pp. 12-16)
3. The circumstances presented in this case are compelling and idiosyncratic. The criminal violations were
essentially self-reported, and occurred through an administrative error after Roseman correctly advised the clerk of
his marital status change and noted the change on his W-4 form. Lewin’s claims that were paid under Carlstadt’s
plan were never personally submitted by Lewin or Roseman. Lewin’s correct health-care provider made restitution
on all timely claims, and Lewin personally made restitution in the full amount of all time-barred claims. The Court
finds these factual circumstances sufficiently “extraordinary and unusual” to overcome the presumption against PTI
for second-degree offenses. (pp. 16-18)
4. There is no factual justification for the application of the factors set forth by the prosecutor under N.J.S.A. 2C:43-
12(e). The prosecutor merely parrots the statutory language, and presents bare assertions regarding Roseman’s
amenability to PTI. The record establishes that: (1) Roseman was not at fault for the initial reporting error; (2) upon
discovering the error he, without prompting, advised the Carlstadt Town Council; and (3) Roseman took several
steps to address the problem. Thus, there are “extraordinary and unusual” circumstances evincing that denial of
Roseman’s PTI application was plainly a patent and gross abuse of discretion. Although the appropriate remedy for
an inadequate statement of reasons by the prosecutor would ordinarily be to remand the matter, under the
circumstances, the Court is constrained to reverse the prosecutor’s decision and compel admission of Roseman into
PTI. Also, the prosecutor’s letter objecting to Lewin’s PTI application reveals that the assessment of Lewin was
entirely dependent on Roseman, thereby depriving Lewin of an individualized assessment. (pp. 18-24)
2
The judgment of the Appellate Division is REVERSED and the trial court’s order compelling defendants’
admission into the Bergen County Pretrial Intervention Program is REINSTATED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA;
and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN did
not participate.
3
SUPREME COURT OF NEW JERSEY
A-105/106 September Term 2013
073674
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM ROSEMAN and LORI
LEWIN,
Defendants-Appellants.
Argued March 2, 2015 – Decided June 18, 2015
On certification to the Superior Court,
Appellate Division.
Patricia M. Prezioso argued the cause for
appellant William Roseman (McCusker,
Anselmi, Rosen & Carvelli, attorneys; Ms.
Prezioso and Sarah L. Fehm, on the briefs).
Alan L. Zegas argued the cause for appellant
Lori Lewin (Law Offices of Alan L. Zegas,
attorney; Mr. Zegas and Stephanie G. Forbes,
on the briefs).
Catherine A. Foddai, Senior Assistant
Prosecutor, argued the cause for respondent
(John L. Molinelli, Bergen County
Prosecutor, attorney).
Sarah E. Ross, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
JUSTICE SOLOMON delivered the opinion of the Court.
We are called upon to determine whether denial of
defendants’ applications to Pretrial Intervention (PTI) by the
1
prosecutor was a patent and gross abuse of discretion. For the
reasons set forth below, we reverse the judgment of the
Appellate Division and reinstate the trial court’s order
compelling defendants’ admission into the Bergen County Pretrial
Intervention Program over the objection of the prosecutor.
I.
The record of the trial court proceedings reveals the
following. Defendants William Roseman and Lori Lewin were
married from 1992 until 2000, during which time Roseman was
elected the Mayor of Carlstadt. As his wife, Lewin was entitled
to, and received, medical, dental and prescription benefits
under Carlstadt’s plan of health, prescription and dental
insurance (Carlstadt’s plan). After their divorce, each was
responsible for their own health insurance pursuant to the
divorce decree; Roseman and the son of the marriage would remain
on Carlstadt’s plan and Lewin was to be provided health
insurance coverage through her own employer. Roseman notified a
Carlstadt payroll clerk, who also served as the Assistant to the
Insurance Officer, of the divorce. At the direction of the
clerk, Roseman changed his W-4 tax form to reflect that he was
no longer married, but Lewin’s name was not removed from
Carlstadt’s plan. During the investigation of this matter by
the prosecutor’s office, the clerk told investigators that she
2
failed to remove Lewin from Carlstadt’s plan because the issue
had simply “slipped her mind.” As a result of this
administrative error, following the divorce, Lewin remained on
Carlstadt’s plan, in addition to her own employer-provided
health insurance plan.
Some of Lewin’s health care providers who supplied services
to Lewin during the marriage, had health insurance information
for both Lewin’s insurance plan and Carlstadt’s plan, and
continued to submit claims under Carlstadt’s plan following the
divorce. Between 2000 and 2007, approximately one hundred
explanation of benefit (EOB) forms addressed to Roseman were
sent to the marital residence where Lewin continued to reside
following the divorce; thirteen of those EOB forms listed claims
against Carlstadt’s plan for services provided to Lewin.
In late 2007, Carlstadt changed its dental insurance plan,
requiring Roseman to submit forms transferring himself and his
son to the new dental plan. After reviewing the forms, the
Carlstadt Insurance Administrator inquired as to why Lewin was
not listed as an insured of the dental plan, and Roseman advised
that he and Lewin were divorced in 2000. At this time, Roseman
discovered that Lewin was listed as an insured under Carlstadt’s
plan after the divorce. Roseman promptly reported this error to
the town council, had Lewin removed from Carlstadt’s plan, and
initiated an internal audit of policy holders to detect other
3
inaccuracies. The audit revealed that three former wives of
city employees, including the former wives of a deputy police
chief and a police lieutenant, and five over-age children, were
also improperly listed as insureds under Carlstadt’s plan.
In order to reimburse Carlstadt’s health insurance
provider, Lewin resubmitted to her employer’s health insurance
carrier all of her medical, prescription and dental claims that
had been paid by Carlstadt’s insurance providers after the
divorce. As a result, Carlstadt’s insurance providers were
repaid by Lewin’s insurance plan for all re-submitted claims
that were not time-barred, and Lewin made direct restitution to
Carlstadt’s insurance providers for the time-barred claims.
The investigation by the Bergen County Prosecutor’s Office
began in this matter when it was informed by a former
councilmember that Lewin had been receiving medical benefits
under Carlstadt’s plan following her divorce from Roseman.
After the investigation by the prosecutor’s office, Roseman and
Lewin were indicted in July 2009 on one count each of third-
degree conspiracy, N.J.S.A. 2C:5-2; third-degree theft by
deception, N.J.S.A. 2C:20-4; and second-degree official
misconduct, N.J.S.A. 2C:30-2a. Even though eight other
individuals also were eligible to improperly receive benefits
under Carlstadt’s plan, Roseman and Lewin were the only
individuals prosecuted.
4
The prosecutor extended plea offers of probationary
sentences to both Roseman and Lewin in exchange for guilty pleas
to the third-degree theft by deception charge. The plea offer
extended to Roseman also required that he admit guilt, resign
from office, and sign a consent order preventing him from
holding any political office in the future.
Both Roseman and Lewin rejected the offer and applied for
admission into PTI. Initially, Roseman was rejected for PTI,
but after he informed the prosecutor that he would agree to
resign and be subject to a lifetime disqualification from office
in exchange for the prosecutor’s consent to his PTI application,
approval of the agreement was sought and obtained by the
prosecutor from the Attorney General’s office. The prosecutor
also expressed his willingness to dismiss the indictment against
Lewin if Roseman was admitted into PTI under those conditions.
Subsequently, defendants reconsidered and rejected the
conditioned PTI offer, and Roseman hired new counsel who filed a
motion to dismiss the indictment.
Before the motion to dismiss was decided, the grand jury
delivered a superseding indictment adding one additional count
of each offense charged against each defendant. Thereafter,
Roseman amended his motion to dismiss to reflect these new
charges. On the motion to dismiss, the trial judge dismissed
5
the official misconduct charges, but refused to dismiss the
remaining charges.
The State was granted leave to file an interlocutory
appeal. The Appellate Division reversed the trial judge and
reinstated the official misconduct counts of the indictment.
After the interlocutory appeal was decided, defendants initiated
efforts to resolve the matter, but those efforts failed because
Roseman refused to resign and agree never to pursue public
office in the future as conditions to any agreement.
As a result, the prosecutor rejected in writing both
defendants’ PTI applications, citing the presumption against PTI
for second-degree offenses provided by the PTI Guidelines and
the following factors under N.J.S.A. 2C:43-12(e): the “nature of
the offense,” N.J.S.A. 2C:43-12(e)(1); the “facts of the case,”
N.J.S.A. 2C:43-12(e)(2); the “motivation and age” of the
defendants, N.J.S.A. 2C:43-12(e)(3); the “desire of the
complainant or victim to forego prosecution,” N.J.S.A. 2C:43-
12(e)(4); the “existence of personal problems and character
traits which may be related to the applicant’s crime and for
which services are unavailable within the criminal justice
system,” N.J.S.A. 2C:43-12(e)(5); the “likelihood that the
applicant’s crime is related to a condition or situation that
would be conducive to change” through PTI, N.J.S.A. 2C:43-
12(e)(6); the “needs and interests of the victim and society,”
6
N.J.S.A. 2C:43-12(e)(7); a “continuing pattern of anti-social
behavior,” N.J.S.A. 2C:43-12(e)(8); the failure to prosecute
“would exacerbate social problems,” N.J.S.A. 2C:43-12(e)(11);
“[w]hether or not the crime is of such a nature that the value
of supervisory treatment would be outweighed by the public need
for prosecution,” N.J.S.A. 2C:43-12(e)(14); and “[w]hether or
not the harm done to society by abandoning criminal prosecution
would outweigh the benefits to society from channeling an
offender into a supervisory treatment program,” N.J.S.A. 2C:43-
12(e)(17).
Following written rejection of defendants’ PTI applications
but before trial, the trial judge, over the objection of the
prosecutor, ordered that Roseman and Lewin be admitted into PTI
without conditions because the “State’s decision objecting to
defendants’ entry into PTI [was] not premised upon a
consideration of all relevant factors and [was] a clear error in
judgment that constitutes a patent and gross abuse of
discretion.” The State filed a notice of appeal.
In an unpublished opinion, the Appellate Division reversed
the order of the trial judge that directed defendants’
admissions into PTI over the prosecutor’s objection. The panel
found that the prosecutor “was entitled to rely on the
presumptions against PTI for second-degree offenses and for
offenses committed by a public official,” and that Roseman had
7
failed to establish by clear and convincing evidence that the
prosecutor patently and grossly abused his discretion in denying
Roseman’s PTI application. As to Lewin, the panel found that
“the absence of an individual assessment of [her]
circumstances,” and the fact that “consideration of Lewin’s
eligibility for PTI was repeatedly linked to Roseman’s,”
required remand for an individualized assessment of Lewin’s PTI
application.
This Court granted certification to determine whether the
prosecutor’s denial of defendants’ PTI applications constituted
a patent and gross abuse of discretion justifying the trial
court’s admission of defendants into PTI over the objection of
the prosecutor. 218 N.J. 274 (2014).
II.
Defendants maintain that they established by “clear and
convincing” evidence that the prosecutor abused his discretion
in denying their PTI applications. Therefore, defendants submit
that the Appellate Division’s decision reversing the trial
court’s order gives prosecutors “unbridled discretion” to deny
PTI. Defendants also argue that the Appellate Division’s
holding amounts to a per se rule that persons charged with
official misconduct cannot be admitted into PTI unless the
prosecutor consents, and that such a per se rule violates the
PTI Guidelines.
8
Furthermore, defendants claim that by relying on the
presumption against admission into PTI for second-degree
official misconduct, and by relying solely on Roseman’s actions
to deny Lewin’s application, both defendants were deprived of
individualized assessments of their amenability to
rehabilitation through PTI in violation of the PTI Guidelines.
Defendants argue that the State’s lack of an individualized
assessment of each application amounts to an abuse of
discretion.
The State contends that the trial court improperly
substituted its judgment for that of the prosecutor and failed
to afford sufficient deference to the prosecutor’s denial of
defendants’ PTI applications by compelling their admission into
PTI. The State maintains that the prosecutor’s denial was
entitled to deference because he properly considered all
relevant factors pursuant to N.J.S.A. 2C:43-12(e). Thus, the
State claims that the prosecutor’s denial of defendants’ PTI
applications does not constitute an abuse of discretion.
Lastly, the State argues that defendants’ PTI applications were
untimely pursuant to Rule 3:28.
III.
A.
We begin by discussing the historical background of PTI and
its purpose. PTI is a “diversionary program through which
9
certain offenders are able to avoid criminal prosecution by
receiving early rehabilitative services expected to deter future
criminal behavior.” State v. Nwobu, 139 N.J. 236, 240 (1995).
PTI was established initially by Rule 3:28 in 1970. State v.
Watkins, 193 N.J. 507, 517 (2008) (citing State v. Leonardis, 71
N.J. 85, 103 (1976) [hereinafter Leonardis I]). In 1979, the
Legislature incorporated PTI into the overhaul of the criminal
codes, establishing PTI as a statewide program pursuant to
N.J.S.A. 2C:43-12. Ibid. Thus, PTI programs are “governed
simultaneously by the Rule and the statute which ‘generally
mirror[]’ each other.” Ibid. (quoting State v. Wallace, 146
N.J. 576, 582 (1996) (citations omitted)).
Pursuant to the procedures and guidelines established by
Rule 3:28 and N.J.S.A. 2C:43-12, acceptance into PTI is
dependent upon an initial recommendation by the Criminal
Division Manager and consent of the prosecutor. The assessment
of a defendant’s suitability for PTI must be conducted under the
Guidelines for PTI provided in Rule 3:28, along with
consideration of factors listed in N.J.S.A. 2C:43-12(e). These
factors include “the details of the case, defendant’s motives,
age, past criminal record, standing in the community, and
employment performance[.]” Watkins, supra, 193 N.J. at 520; see
N.J.S.A. 2C:43-12(e). Additionally, a PTI determination
requires that the prosecutor make an individualized assessment
10
of the defendant considering his or her “‘amenability to
correction’ and potential ‘responsiveness to rehabilitation.’”
Watkins, supra, 193 N.J. at 520 (quoting N.J.S.A. 2C:43-12(b)).
While all defendants may apply for admission into PTI,
N.J.S.A. 2C:43-12(b), the PTI Guidelines provide several
statutory presumptions against PTI when defendants have
committed certain offenses, see Watkins, supra, 193 N.J. at 513.
Relevant to the present case, N.J.S.A. 2C:43-12(b) specifies a
statutory presumption against PTI for “a defendant who was a
public officer or employee whose offense involved or touched
upon his public office or employment.” Similarly, Guideline
3(i) identifies a presumption against PTI for any first- or
second-degree crime, as well as any crime that is a breach of
the public trust. Pressler & Verniero, Current N.J. Court
Rules, Guideline 3(i) on R. 3:28, at 1169 (2015) (stating
persons charged with first- or second-degree crimes “should
ordinarily not be considered for enrollment in a PTI program
except on joint application by the defendant and the
prosecutor”).
Regardless of the statutory presumptions, “[e]ligibility
for PTI is broad enough to include all defendants who
demonstrate sufficient effort to effect necessary behavioral
change and show that future criminal behavior will not occur.”
Pressler & Verneiro, supra, Guideline 2 on R. 3:28, at 1167.
11
When a statutory presumption against PTI applies, as here, a
criminal defendant can show that PTI is nonetheless warranted
through “facts or materials demonstrating the defendant’s
amenability to the rehabilitation process.” Ibid. To overcome
the statutory presumption against PTI the defendant must “show[]
compelling reasons justifying . . . admission, and establish[]
that a decision against enrollment would be arbitrary and
unreasonable.” Ibid. Presumptions against PTI reflect an
assumption that certain defendants “have committed crimes that
are, by their very nature, serious or heinous and with respect
to which the benefits of diversion are presumptively
unavailable.” Watkins, supra, 193 N.J. at 523. Accordingly,
this Court has stated that overcoming these presumptions
requires showing “something extraordinary or unusual” about the
defendant’s background. Nwobu, supra, 139 N.J. at 252-53.
B.
Our discussion in Nwobu, supra, 139 N.J. 236, of the
special circumstances required to overcome the presumption
against acceptance into PTI is instructive. In that case, we
noted the fact “[t]hat Nwobu is charged with a second-degree
crime is the single most important factor involved.” Id. at
252. This Court then compared the issue of Nwobu’s admission
into PTI to the related context of criminal sentencing, and
stated that to overcome the “presumption of incarceration for
12
first- and second-degree offenders,” there must be “‘truly
extraordinary and unanticipated circumstances’ when the
sentencing court finds that a ‘serious injustice’ exists.”
Ibid. (quoting State v. Roth, 95 N.J. 334, 358 (1984)). Such a
showing requires more than just “that the accused is a first-
time offender and has admitted or accepted responsibility for
the crime.” Id. at 252-53.
The prosecutor in Nwobu rejected the defendant’s PTI
application based upon the following: the statutory presumption
against admission into PTI for second-degree offenders; that the
offense constituted “a continuing pattern of anti-social
behavior”; and that “PTI would fail to serve as a sufficient
sanction or deterrent.” Id. at 241. In Nwobu, where defendant
had been charged with second-degree theft by deception and was
seeking to overcome rejection of his PTI application by the
prosecutor, we found “nothing extraordinary or unusual” to
overcome the presumption against admission into PTI. Id. at
241, 253. We rejected Nwobu’s contentions that his status as a
first-time offender and his assertions that he played a
relatively minor role in the fraud rendered the prosecutor’s
denial of his application a patent and gross abuse of
discretion. Id. at 252-53.
13
In a matter consolidated with Nwobu1, we affirmed the
prosecutor’s decision to deny PTI applications by three
defendants who had been charged with throwing firecrackers into
a crowd of people, second- and third-degree offenses. Id. at
255-56. As with Nwobu, we rejected the contentions that,
because defendants were first-time offenders and were otherwise
productive citizens, the prosecutor’s decision amounted to a
patent and gross abuse of discretion. Ibid. “Denying PTI to
those who intentionally throw destructive devices into a crowd
reflects legitimate considerations that are supported by the
Guidelines.” Id. at 256.
Nwobu did not establish a standard for “extraordinary and
unusual” circumstances. To the contrary, we made clear that
this is a fact-sensitive analysis that requires consideration of
“idiosyncratic” circumstances demonstrating that denial of PTI
has resulted in a “serious injustice.” Id. at 252; accord State
v. Jabbour, 118 N.J. 1, 7 (1990).
C.
Even if “extraordinary and unusual” circumstances exist to
overcome the presumption against admission into PTI for certain
offenses, this Court has recognized that PTI is essentially an
1 The second case, State v. Callender, was consolidated with
Nwobu in order to adjudicate whether the prosecutors in both
cases “arbitrarily rejected defendants’ admission into Pretrial
Intervention programs[.]” Nwobu, supra, 138 N.J. at 240.
14
extension of the charging decision, therefore the decision to
grant or deny PTI is a “quintessentially prosecutorial
function.” Wallace, supra, 146 N.J. at 582. As a result, the
prosecutor’s decision to accept or reject a defendant’s PTI
application is entitled to a great deal of deference. State v.
Leonardis, 73 N.J. 360, 381 (1977) [hereinafter Leonardis II].
Trial courts may overrule a prosecutor’s decision to accept or
reject a PTI application only when the circumstances “‘clearly
and convincingly establish that the prosecutor’s refusal to
sanction admission into the program was based on a patent and
gross abuse of . . . discretion.’” Wallace, supra, 146 N.J. at
582 (quoting Leonardis II, supra, 73 N.J. at 382). In State v.
Bender, 80 N.J. 84, 93 (1979), this Court defined a “patent and
gross abuse of discretion” in the context of a prosecutor’s
denial of a PTI application:
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 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.
15
Where a defendant can make that showing, a trial court may admit
a defendant, by order, into PTI over the prosecutor’s objection.
State v. Dalglish, 86 N.J. 503, 513 (1981).
IV.
A.
Initially, this Court will dispose of the State’s
timeliness argument. It is undisputed that both defendants
applied to PTI within twenty-eight days of their indictment in
accordance with Rule 3:28. Nevertheless, the State argues that
defendants’ PTI applications were untimely because the trial
judge reopened discussions of defendants’ PTI admission more
than two years after the indictment, and after defendants’
applications had been rejected by the prosecutor.
It is “abundantly clear that, provided a defendant files a
timely application for PTI as required by R. 3:28(h), the denial
of his or her application may be reviewed prior to trial, and
may also be reviewed on direct appeal following conviction2
either after trial or the entry of a guilty plea.” State v.
Halm, 319 N.J. Super. 569, 579 (App. Div.), certif. denied, 162
2 We note that in State v. Bell, 217 N.J. 336 (2014), where the
co-defendant Schwab timely applied and was admitted to PTI, we
rejected as untimely defendant Bell’s PTI application made more
than three years after indictment, and after defendant proceeded
to trial and was convicted of third degree attempted aggravated
assault.
16
N.J. 131 (1999). The applications for PTI that led to this
dispute were properly filed by defendants within the twenty-
eight days provided by the Rule, and were properly treated by
the trial judge as reconsideration of previous applications,
rather than new, untimely applications.
B.
Turning to the considerations and presumptions relevant to
this case, defendants were charged with second-degree official
misconduct, which creates a presumption against acceptance into
PTI under both the Guidelines and N.J.S.A. 2C:43-12(b). State
v. Caliguiri, 158 N.J. 28, 42 (1999). However, the presumption
is rebuttable upon a “showing [of] compelling reasons justifying
the applicant’s admission and establishing that a decision
against enrollment would be arbitrary and unreasonable.”
Pressler & Verniero, supra, Guideline 3(i) to R. 3:28, at 1169.
The question before us is whether there were compelling reasons
to overcome the presumption against defendants’ admission into
PTI.
The circumstances presented here are compelling and
idiosyncratic. The criminal violations were essentially self-
reported, and occurred through an administrative error after
Roseman correctly advised the clerk of his marital status change
and noted the change on his W-4 form. Upon discovery, Roseman
took immediate action to ameliorate the problem by removing
17
Lewin from Carlstadt’s plan and initiating an internal audit of
all Carlstadt health insurance policy holders. Lewin’s claims
that were paid under Carlstadt’s plan were never personally
submitted by Lewin or Roseman. Rather, the claims were
submitted by Lewin’s health-care providers who had both
insurance plans on file. Lewin’s correct health-care provider
made restitution on all timely claims, and Lewin personally made
restitution in the full amount of all time-barred claims.
We find these factual circumstances sufficiently
“extraordinary and unusual” to overcome the presumption against
PTI for second-degree offenses. However, our finding that
defendants have demonstrated extraordinary circumstances to
overcome the presumption against PTI for second-degree offenses
does not end our inquiry. Defendants’ applications must still
be evaluated under the factors provided in N.J.S.A. 2C:43-12(e)
to determine whether the prosecutor’s denial was a patent and
gross abuse of discretion.
C.
A prosecutor’s decision to deny a defendant’s PTI
application is a “patent and gross abuse of discretion” if the
prosecutor’s decision “failed to consider all relevant factors,
was based on irrelevant or inappropriate factors, or constituted
a ‘clear error in judgment.’” Nwobu, supra, 139 N.J. at 247(quoting Bender, supra, 80 N.J. at 93). “Additionally, an abuse
18
of discretion is ‘patent and gross’ if it is shown ‘that the
prosecutorial error complained of will clearly subvert the goals
underlying [PTI].’” Ibid.As noted previously, the State cites factors one through
eight, eleven, fourteen, and seventeen of the PTI statute,
N.J.S.A. 2C:43-12(e), in support of its denial of Roseman’s PTI
application. However, there is no factual justification for the
application of those factors set forth by the prosecutor in the
record, which includes the prosecutor’s written denial of
Roseman’s PTI application. Rather, the statement of reasons
provided by the prosecutor merely parrots the statutory
language, and presents bare assertions regarding Roseman’s
amenability to PTI.
For example, the State fails to provide any factual support
for its conclusions in the letter denying Roseman’s PTI
application that: (1) denial of Roseman’s PTI application was
justified, in part, by his “motivation and age”; (2) “there may
exist personal problems or character traits which may be related
to the defendant’s crime, given the length of time this scheme
continued and for which services are unavailable or insufficient
within the criminal justice system, or it is probable that the
causes of defendant’s criminal behavior cannot be controlled by
proper treatment effectively through the supervisory treatment
program”; and (3) “the crimes appear to constitute part of a
19
continuing pattern of defendant’s anti-social behavior, since
these were repeated thefts committed over many years.”
The State relies heavily on the nature of defendants’
alleged wrongdoing and the facts of the case in arguing that
defendants committed theft by deception over a long period of
time and that Roseman, by virtue of the EOB forms, was aware
that Lewin remained on the policy. However, the only evidence
on the subject that is of record establishes that: (1) Roseman
was not at fault for the initial reporting error; (2) upon
discovering the error he, without prompting, advised the
Carlstadt Town Council; and (3) Roseman took several steps to
address the problem, including immediately removing Lewin from
the plan and initiating an internal audit of all policy holders
under Carlstadt’s plan. Thus, the record directly contradicts
the State’s assertion that the nature and facts of the case
militate in favor of prosecution.
Indeed, contrary to the prosecutor’s findings, the unusual
facts presented here suggest that Roseman would have been
particularly amenable to PTI. Furthermore, while the Borough of
Carlstadt would seem to have a legitimate interest in pursuing a
prosecution alleging theft of public funds, N.J.S.A. 2C:43-
12(e)(7), the prosecutor’s reliance upon this factor is refuted
by the State’s decision to prosecute only defendants even though
three ex-wives and five adult children of city employees also
20
were eligible to improperly receive benefits under Carlstadt’s
plan. Moreover, given Roseman’s self-reporting, prompt
remediation, and stroke that occurred since his indictment in
2009 and caused partial vision and memory loss, it is difficult
to conceive of how the prosecutor decided that: “[t]here is a
likelihood that the defendant’s crime is related to a condition
or situation that would not be conducive to change through his
participation in supervisory treatment”; “[f]ailure to prosecute
would exacerbate the social problems that led to the defendant’s
criminal act [because] [w]ithout prosecution, those who engage
in criminal behavior, particularly against public entities, may
believe it is acceptable conduct or that the benefit of such
conduct outweighs the penalties,” or even what those social
problems were; how the “value of supervisory treatment would be
outweighed by the public need for prosecution,” or how “[t]he
harm done to society by abandoning criminal prosecution would
outweigh the benefits to society from channeling [defendant]
into a supervisory treatment program.” Further, the State’s
assertion that supervisory treatment would be insufficient in
this case fails to account for the rehabilitative goals of PTI,
or that defendants are fully employed, productive members of
their community.
The prosecutor’s bald declarations are insufficient to
support denial of Roseman’s PTI application. Nwobu, supra, 139
21
N.J. at 251. Accordingly, we cannot determine, based on the
record presented to us, that the factors considered by the
prosecutor support denial of Roseman’s application. We
therefore conclude the prosecutor’s reliance on the above-
referenced factors was improper.
The prosecutor relied upon irrelevant or inappropriate
factors, and there are “extraordinary and unusual” circumstances
evincing that denial of Roseman’s PTI application constituted a
clear error in judgement. Therefore, we determine that such a
denial was plainly a patent and gross abuse of discretion that
“‘clearly subvert the goals underlying [PTI].’” Nwobu, supra,139 N.J. at 247 (quoting Bender, supra, 80 N.J. at 93).
Ordinarily, the appropriate remedy for an inadequate
statement of reasons by the prosecutor would be remand for
further consideration of a defendant’s PTI application, and the
opportunity to provide an adequate factual basis for the
prosecutor’s findings. However, where, as here, nearly six
years has elapsed since Roseman’s indictment during which time
he suffered a stroke, and circumstances show clearly and
convincingly that there has been a patent and gross abuse of
discretion by the prosecutor which constituted a clear error in
judgment that will “‘subvert the goals underlying [PTI],’”
ibid., remand is inappropriate. We are therefore constrained to
22
reverse the prosecutor’s decision and compel admission of
Roseman into PTI.
D.
We now turn to Lewin’s PTI application. In addition to
consideration of appropriate, relevant factors in evaluating an
applicant’s PTI application, we require that “a prosecutor must
consider an individual defendant’s features that bear on his or
her amenability to rehabilitation.” Nwobu, supra, 139 N.J. at
255; see also State v. Sutton, 80 N.J. 110, 119 (1979).
Disposition of Lewin’s case, whether through plea or PTI, was
explicitly linked to Roseman’s disposition. The letter from the
prosecutor listing the factors supporting a denial of Lewin’s
PTI application is brimming with references to Roseman’s actions
and contains a nearly identical factor analysis. While the use
of identical factors for co-defendants’ PTI applications does
not rob those applicants of an individualized determination, the
prosecutor’s letter objecting to Lewin’s PTI application reveals
that the assessment of Lewin was entirely dependent on Roseman,
disproving any assertion that Lewin received an individualized
assessment.
V.
For the reasons set forth above, the judgment of the
Appellate Division is reversed, and the trial court’s order
23
compelling defendants’ admission into the Bergen County Pretrial
Intervention Program is reinstated.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join in
JUSTICE SOLOMON’s opinion. JUSTICE ALBIN did not participate.
24
SUPREME COURT OF NEW JERSEY
NO. A-105/106 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM ROSEMAN and LORI
LEWIN,
Defendants-Appellants.
DECIDED June 18, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REINSTATE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6