State v. Imbriani

• Decision Date: 03 June 1996
• Citation: 291 N.J.Super. 171,677 A.2d 211
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Michael R. IMBRIANI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 171

291 N.J.Super. 171

677 A.2d 211

STATE of New Jersey, Plaintiff-Respondent, v. Michael R. IMBRIANI, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued May 22, 1996.

Decided June 3, 1996.

Donald R. Belsole, Morristown, for appellant (Mr. Belsole, attorney; Kevin Weinman, on the brief).

Nancy L. Singer, Assistant Attorney General, for respondent (Deborah T. Poritz, Attorney General of New Jersey, attorney; Ms. Singer, of counsel, and on the brief).

Before Judges SHEBELL, STERN and WALLACE.

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Defendant, Michael R. Imbriani, a former Superior Court Judge, appeals from the denial of his application to enter the Pretrial Intervention Program (PTI). He argues that: (1) the Program Director's denial was arbitrary and capricious since it was predicated upon defendant's refusal to settle a related civil suit and failed to apply fair and reasonable criteria; and (2) the court erroneously considered sua sponte and found that defendant's conduct was a breach of the public trust. We hold the decision to reject defendant's application was not arbitrary or capricious, and find it unnecessary to address the breach of public trust issue.

On June 16, 1994, defendant was charged in an accusation with a violation of N.J.S.A. 2C:20-9, theft by failure to make required disposition of property received, a third degree offense. The charge related to defendant's, then a sitting judge, misuse of funds of a closely held corporation, Community Medical Arts Building, Inc. (CMAB), in which defendant's wife was a forty percent stockholder. Her shares were transferred to her by the defendant fifteen years earlier. Three other persons, all doctors, held the remaining stock. The corporation operated a medical arts building. Defendant had controlled the operation of CMAB since its inception, thirty years earlier.

In April 1992, the stockholders became aware that the mortgage on the building was near foreclosure. Their investigation revealed that defendant had diverted $113,576.53 in tenant rent and real estate tax checks, between May 1, 1988 and June 6, 1992, to his personal bank accounts. He repaid $13,726.68, leaving a balance of $99,799.85 in diverted rent and tax checks. Defendant also paid personal expenses with CMAB funds in the amount of $26,300.35 and wrote CMAB checks payable to vendors, endorsed the checks in the vendors' names, cashed them, retaining the proceeds of $32,050.05. These amounts together with other diversions of funds caused the amount diverted to total $173,002.93. Defendant repaid $85,000 of the funds taken.

Defendant pled guilty to the offense. He asserted he managed CMAB for no compensation, and his only benefit was the ability to borrow money. He said that with the permission of the partners, he would take loans against CMAB and settle up at the end of the year, but when his children reached college, he began to borrow more than he could repay.

The plea agreement read in part:

The State will not object to defendant's admission to P.T.I. on recommendation of Program Director ¹ on the following conditions 1) restitution of $173,002, less $85,000 which has been paid leaving a balance of $88,002.93; 2) payment to Div. of Tax, NJ $5314, and perform [sic] 300 hours of community service. Payment of restitution to be $250 per month for the first year and $500 per month thereafter. At the end of PTI probation period (if admitted) defendant will enter consent judgment with State for any amount still outstanding.

[Emphasis Added.]

Defendant applied for PTI, but on July 26, 1994, the Program Director rejected his application. The Director concluded that the

amount of the theft is too large, the time period over which this occurred was too long, the criminal practices too diverse, and the victims too aggrieved. The acts were purposeful and executed through careful planning, with the defendant realizing considerable financial gain. Although the applicant brings unique, if not remarkable, credentials, and certainly expresses an ostensible desire for diversion, his conduct through the lengthy course of crime, and afterwards, profiles an attitude less than ideal for diversionary supervision. It is recognized that some measure of punishment has already been served, in the form of shame and disgrace associated with negative publicity, forced retirement and temporary disbarment; however, it might also be said that the above punishment is insufficient in light of the offense and facts supporting this case. The fact that this matter has been plea bargained to a lower level, a level within P.T.I. range, does little to offset the seriousness of this offense when measured against the PTI standards. It is not sufficiently punitive to require Imbriani to pay back that which the Prosecutor could prove he took, at a rate which may never reach goal. That would not stand as a deterrent to the individual or to the general public. The crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution and the harm done by abandoning criminal prosecution outweighs the benefits of supervisory treatment. Further, the needs and interests of the victims and society would not be met through diversion.

The Director found the following statutory guidelines applicable: N.J.S.A. 2C:43-12(e)(1), (2), (7), (8), (14) and (17).

Defendant appealed the Director's rejection of his application to the Assignment Judge of Mercer County. The Attorney General advised the judge as follows:

The State has independently evaluated this defendant's application to the program in light of the information developed by the PTI director as set forth in the director's PTI Rejection, the statements of the defendant and defendant's individual characteristics, the statements of the victims, all of the facts and circumstances of the case, and the letter brief on behalf of defendant contending that there are compelling reasons why he should be admitted to the program. The State concurs with the decision of the program director and does not consent to defendant's application to the PTI program. The reasons provided by the director are supported by the record and information provided to the director.

The judge ruled that the record did not establish that the Director abused his discretion. State v. Imbriani, 280 N.J.Super. 304, 306, 654 A.2d 1381 (Law Div.1994). Defendant was sentenced to five years of probation with community service and restitution on March 8, 1995 and on June 12, 1995, a further judgment providing the terms of restitution to the victims was signed.

Defendant urges that the denial of his entry into PTI was arbitrary and capricious because: (1) he was treated differently because he was a Superior Court Judge, and when he is looked at as an individual he is amenable to correction; (2) there was too much emphasis placed on the victims' lack of consent, which was related to defendant's refusal to settle the civil suit sooner; (3) there was too much emphasis on defendant's inability to make restitution; (4) the nature of the crime did not lend itself to rejection; and (5) there was too much emphasis placed on the continuing nature of the crime. We reject these contentions.

PTI is a program whose purpose is to divert individuals with high rehabilitative prospects from the traditional channels of the criminal process. State v. Bender, 80 N.J. 84, 88, 402 A.2d 217 (1979). Admission is based on the recommendation of the Program Director, with the consent of the prosecuting attorney. R. 3:28(b). Once the prosecutor has determined not to consent, the decision is afforded great deference, and the decision will not be overturned absent a showing of patent and gross abuse of discretion. State v. Leonardis, 73 N.J. 360, 381, 375 A.2d 607 (1977); State v. Kraft, 265 N.J.Super. 106, 112-13, 625 A.2d 579 (App.Div.1993).

Ordinarily, an abuse of discretion will be manifest if the defendant can show that a prosecutorial veto (1) was not premised upon a consideration of all relevant factors; (2) was based upon a consideration of irrelevant or inappropriate factors, or (3) amounted to a clear error in judgment. State v. Bender, supra, 80 N.J. at 93, 402 A.2d 217. 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. Ibid. A reviewing court must assume, absent evidence to the contrary, that the prosecutor's office has considered all relevant factors in reaching the PTI decision. State v. Nwobu, 139 N.J. 236, 247, 652 A.2d 1209 (1995). A reviewing court does not have the authority to substitute its own discretion for that of the prosecutor. Id. at 253, 652 A.2d 1209.

The Supreme Court has promulgated Guidelines for Operation of Pretrial Intervention in New Jersey to provide courts and prosecutors with criteria for making PTI decisions. Ibid. These guidelines are an addendum to R. 3:28. Guideline 1 of R. 3:28 identifies five purposes of PTI. They are: (a) to enable defendants to avoid ordinary prosecution by receiving early rehabilitative services expected to deter future criminal behavior; (b) to provide defendants who might be harmed by the imposition of criminal sanctions with an alternative to prosecution expected to deter criminal conduct; (c) to avoid burdensome prosecutions for "victimless" offenses; (d) to relieve overburdened criminal calendars so that resources can be expended on more serious criminal matters; and (e) to deter future criminal behavior of PTI participants.

Guideline 3 of R. 3:28 lists a number of factors to be considered when assessing a PTI application, including those found in N.J.S.A. 2C:43-12(e). According to N.J.S.A. 2C:43-12(e), a Program Director and Prosecutor must consider: (1) the nature of the offense; (2) the facts of the case; (3) the...