                                 NOT FOR PUBLICATION WITHOUT THE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-2479-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRENDA A. SYPECK,

     Defendant-Appellant.
____________________________

                   Submitted August 13, 2019 – Decided September 5, 2019

                   Before Judges Sumners and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 17-03-
                   0269.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Alyssa A. Aiello, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Andrew C. Carey, Middlesex County Prosecutor,
                   attorney for respondent (Patrick F. Galdieri, II,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Brenda Sypeck appeals from the Law Division's order

affirming the State's rejection of her application for admission into the pretrial

intervention program (PTI) and requiring her to pay $368,000 in restitution.

Defendant contends the denial of her entry into PTI was an arbitrary, patent and

gross abuse of discretion, and that she should not have been ordered to pay

restitution without a hearing to determine her ability to pay. While the State

continues its opposition to her admission into PTI, it concedes a hearing should

have been held. Having considered the arguments raised in light of the record

and our standard of review, we affirm the denial of defendant's admission into

PTI but reverse the restitution order and remand for a hearing to determine her

ability to pay and the amount of time for making payment.

                                        I

      In June 2016, the president (the victim) of Gerrus Maintenance, Inc. (the

company), reported to police that defendant, the company's bookkeeper, over a

period of approximately three years from January 2013 to June 2016, cashed one

hundred and forty-one company checks totaling approximately $200,000 that

she issued to herself without authorization. Based upon a re-audit of the books,

the victim later estimated the loss to be over $300,000.




                                                                          A-2479-17T1
                                        2
      According to the victim, when he confronted defendant, she admitted

taking the money due to a gambling problem.          Defendant, who had been

employed by the company for eleven years, was immediately terminated and left

the premises before the police arrived.

      Prior to the victim's complaint being presented to a grand jury, defendant

applied to the Middlesex County criminal case management office for PTI in

November 2016. Defendant, fifty-seven years old, was never married, had no

children, and was the sole caregiver for her ill elderly mother, who resided with

her. She did not have a prior criminal record. She claimed the unauthorized

checks she wrote and cashed totaled $225,000, and were used to pay off her

gambling debts, care for her divorced parents, and pay bills. Diagnosed as a

gambling addict after her arrest, defendant began attending Gambler's

Anonymous to remedy her addiction.

      The Criminal Division Manager/PTI Director (CDM) denied defendant's

PTI application, reasoning that: defendant had committed the offense an

excessive amount of times over an extended period; she abused her position of

trust as bookkeeper to steal money from her employer that she reportedly used

to pay off her gambling debts and personal expenses; she was accused of a

second-degree offense, which carries a presumption of incarceration; and the


                                                                         A-2479-17T1
                                          3
victim was extremely opposed to her admission into PTI. 1 The CDM concluded:

"Her crime constitutes a pattern of continuing criminality and the offense is of

such a nature that supervisory treatment is not outweighed by the public need

for prosecution."

       Defendant thereafter moved before the Law Division to allow her entry

into PTI, claiming there was an abuse of discretion in rejecting her admission.

She argued that she should be admitted into PTI because of her lack of a prior

criminal record, her amenability to rehabilitation, the non-violent nature of her

offense that was due to her gambling addiction, and her desire to pay restitution.

       The State opposed the motion. In his statement of reasons for denial of

PTI, the prosecutor stated that defendant was charged with second-degree

offenses, which carry a presumption against admission into PTI. The prosecutor

also found denial was supported by the following factors set forth in N.J.S.A.

2C:43-12(e):

            (1) The nature of the offense;

            (2) The facts of the case;

            (3) The motivation and age of the defendant;



1
  Due to the loss caused by defendant, the victim claimed that he had to spend
his retirement funds to pay for employee salaries and bills.
                                                                          A-2479-17T1
                                         4
(4) The desire of the complainant or victim to forego
prosecution;

(5) 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, or which may be provided more
effectively through supervisory treatment and the
probability that the causes of criminal behavior can be
controlled by proper treatment;

(6) The likelihood that the applicant's crime is related
to a condition or situation that would be conducive to
change through his participation in supervisory
treatment;

(7) The needs and interests of the victim and society;

(8) The extent to which the applicant's crime constitutes
part of a continuing pattern of anti-social behavior;

(9) The applicant's record of criminal and penal
violations and the extent to which he may present a
substantial danger to others;

      ....

(14) Whether or not the crime is of such a nature that
the value of supervisory treatment would be
outweighed by the public need for prosecution;

      ....

(17) Whether 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.


                                                            A-2479-17T1
                           5
In considering the N.J.S.A. 2C:43-12(e) factors, the prosecutor found that

factors one, two, three, four, five, six, seven, eight, nine, fourteen, and seventeen

weighed against defendant, but noted that factor three weighed in her favor.

       Following oral argument, the trial judge noted the deference given to a

prosecutor's decision regarding PTI applications and found that the State did not

"act in a manner that constituted a patent and gross abuse of discretion in

denying" defendant's application.

       Defendant thereafter pled guilty to second-degree theft by unlawful

taking, in consideration for the State's agreement to dismiss the remaining five

charges and recommend that she be sentenced to a six-year prison term. As for

restitution, the judge, finding that a forensic accountant hired by the victim

proved the loss was $293,200 while defendant believed it was about $225,000,

allowed defense counsel to submit a sentencing memo detailing "[defendant's]

ability to pay."

       The judge later sentenced defendant in accordance with the plea

agreement. She was presented with, and executed, a consent judgment 2 between



2
  As of November 16, 2017, a month before this sentencing on December 15,
2017, we held "criminal courts are proscribed from entering civil consent
judgments when sentencing a defendant to make restitution." State v. Masce,
452 N.J. Super. 347, 355 (App. Div. 2017).
                                                                             A-2479-17T1
                                         6
defendant and the State whereby defendant agreed to pay the victim and his wife

$227,000.      There was no timetable for when payment should be made.

Notwithstanding the parties' agreement, the judge determined the "full

restitution is for $368,000." The judge made no mention of defendant's ability

to pay, merely commenting "[t]he attorneys can explain the ramifications of the

difference."

                                       II

      We first address defendant's contentions that she should have been

allowed entry into the PTI program, or in the alternative, there be a remand to

the prosecutor for reconsideration of her PTI application. First, citing State v.

Smith, 92 N.J. 143, 147 (1983), for the principle that the weight of the evidence

of guilt or innocence, standing alone should not be considered by neither the

prosecutor nor the court in evaluating the PTI admission, defendant contends

the judge inappropriately gave weight to the fact that she admitted guilt to

second-degree theft.

      Second, defendant argues the judge erred in giving weight to several PTI

factors. She reasons the victim's opposition to her admission into PTI should

not be given particular weight because his opposition may be based on revenge

or considerations unrelated to PTI evaluators. State v. Imbriani, 291 N.J. Super.


                                                                         A-2479-17T1
                                       7
171, 180 (App. Div. 1976). She points out that neither the victim's age nor his

monetary loss should be given particular weight because defendant did not

specifically take advantage of the victim's vulnerability. Defendant also asserts

since she did not act out of malice or desire to develop a fraudulent relationship

with the victim, but rather committed the offense due to her overpowering

gambling addiction, the fact that she abused the position of trust should not be

considered particularly more than the other factors. She further notes the judge

did not give enough weight to PTI factors five and six because the offense was

due to her gambling problem that she was devoted to remedy.

      Third, defendant argues the judge's ruling subverted the PTI goals of

achieving deterrence of future crimes by means of rehabilitative service and

relieving the overburdened criminal calendar for judicial economy. State v.

Nwobu, 139 N.J. 236, 247 (1995).

      Based upon the following principles, defendant's contentions do not

warrant a reversal of the judge's order, which allowed the denial of her

admission into PTI to stand.

      "PTI is a 'diversionary program through which certain offenders are able

to avoid criminal prosecution by receiving early rehabilitative services expected

to deter future criminal behavior.'" State v. Roseman, 221 N.J. 611, 621 (2015)


                                                                          A-2479-17T1
                                        8
(quoting Nwobu, 139 N.J. at 240). Accordingly, "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.'" Id. at 621-22 (quoting State v. Watkins, 193 N.J. 507, 520

(2008)).

      The scope of our review of a PTI rejection is "severely limited." State v.

Negran, 178 N.J. 73, 82 (2003). Deciding whether to permit a defendant's

diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace,

146 N.J. 576, 582 (1996). "Prosecutorial discretion in this context is critical for

two reasons. First, because it is the fundamental responsibility of the prosecutor

to decide whom to prosecute, and second, because it is a primary purpose of PTI

to augment, not diminish, a prosecutor's options." Nwobu, 139 N.J. at 246

(quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)).

Accordingly, courts give prosecutors "broad discretion" in determining whether

to divert a defendant into PTI. State v. K.S., 220 N.J. 190, 199 (2015). Thus,

on appellate review, PTI decisions are given "enhanced deference." State v.

Brooks, 175 N.J. 215, 225 (2002).

      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


                                                                           A-2479-17T1
                                        9
the case, defendant's motives, age, past criminal record, standing in the

community, and employment performance[.]'"           Roseman, 221 N.J. at 621

(alteration in original) (quoting Watkins, 193 N.J. at 520). "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.'"

Watkins, 193 N.J. at 520 (citation omitted). "A patent and gross abuse of

discretion is defined as a decision that 'has gone so wide of the mark sought to

be accomplished by PTI that fundamental fairness and justice require judicial

intervention.'" Ibid. (citation omitted). An abuse of discretion is manifested

where it can be proven "that the [PTI] 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 (2014) (quoting State v.

Bender, 80 N.J. 84, 93 (1979)).

      Under these parameters, we see no cause to disturb the trial judge's order

substantially for the reasons set forth in her written decision. We agree with her

findings that the State did not abuse its discretion in denying defendant's

admission into PTI.




                                                                            A-2479-17T1
                                        10
      We, however, take issue with the judge's restitution order of $368,000.

Defendant asserts the judge did not consider her ability to pay restitution and

apparently assumed the consent judgment relieved the judge of her

responsibility to do so, especially where the restitution amount exceeded the

amount of the consent judgment.        N.J.S.A. 2C:44-2(b), -2(c)(2); State v.

Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994). Defendant maintains

that due process requires a hearing on her ability to pay and the time period for

making restitution. State v. Orji, 277 N.J. Super, 582, 589 (App. Div. 1994).

We agree with defendant, as does the State, that a hearing must be held to

determine her ability to pay and the amount of time she should be permitted to

make restitution. Thus, we remand for that purpose.

      Affirmed in part, reversed in part, and remanded for a restitution hearing.

We do not retain jurisdiction.




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                                      11
