State v. Mickens
| Decision Date | 23 October 1989 |
| Citation | 236 N.J.Super. 272,565 A.2d 720 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Lorraine MICKENS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Alfred A. Slocum, Public Defender, attorney for defendant-appellant (Mark H. Friedman, Asst. Deputy Public Defender, of counsel and on the letter brief).
Ronald S. Fava, Passaic County Prosecutor, attorney for plaintiff-respondent (Steven E. Braun, Sr. Asst. Prosecutor, of counsel and on the letter brief).
Before Judges PRESSLER, LONG and GRUCCIO.
The opinion of the court was delivered by
PRESSLER, P.J.A.D.
This is an appeal from an order of the Superior Court, Law Division, affirming the rejection by the Passaic County Prosecutor of defendant Lorraine Mickens' application for admission to the pretrial intervention program (PTI). Concluding that the rejection constituted a patent and gross abuse of discretion, we reverse the order, vacate the ensuing judgment of conviction, and direct defendant's admission into the program.
Defendant, then 30 years old and the single parent of three children ages 10, 9 and 7, was indicted in March 1987 on two counts of theft by deception, contrary to N.J.S.A. 2C:20-4. Both arose out of her receipt of public financial assistance during periods when she was employed. The first count charged her with improper receipt of a total of $11,051 in categorical welfare payments during the four-month period from July 1981 to November 1981, the six-month period from December 1981 to May 1982, the four-month period from October 1982 to February 1983, and the thirteen-month period from February 1984 to March 1985. The second count charged her with receiving a total of $4,679 in food stamps during the same periods.
Following the return of the indictment, defendant applied for PTI and was recommended for acceptance by the Program Director. The prosecutor disagreed with the recommendation, advising defendant of her rejection pursuant to PTI Guideline 3(i). That decision was affirmed by the trial judge, albeit reluctantly. Thereafter, pursuant to a plea negotiation which preserved defendant's right to appeal from the PTI rejection, she pleaded guilty to the first count and signed a civil judgment requiring her to make full restitution, a condition she had accepted as part of her PTI application. She was then sentenced to a probationary term.
According to this record, it appears that defendant, a high school graduate, had managed to complete a secretarial course in June 1981 and, despite her obligation to care for and raise her three children, she also managed to obtain secretarial employment during the periods referred to in the indictment at an hourly wage of between $4 and $5. She explained to the Program Director that she did not report this income to the welfare authorities, although she knew she was supposed to, because she still had "trouble making ends meet" and was otherwise unable to move herself and her children from what she described as "undesirable housing conditions." She was, in fact, during part of this time living with her children at the Alexander Hamilton Hotel, a welfare facility well-qualified for the characterization of "undesirable." She also lived for part of the time in an apartment in her mother's house, an arrangement she was forced to abandon when her mother sold the house and the new owner raised the rent beyond her capacity to pay. She finally succeeded in obtaining an apartment in a public housing project where she apparently still resides with her children.
Some months after her last improper receipt of welfare, defendant obtained a secretarial position with Merrill Lynch. After some thirteen months there, she had done so well that her employer selected her for attendance at its stockbroker school. At about that time, the indictment was returned. Her superiors explained to her that in order to attend the school and pursue a stockbroker career, she would be required to be bonded, a requirement she would be unable to meet if convicted of a crime. As we understand the record, Merrill Lynch agreed to defer these career advancement plans until disposition of the criminal charge, retaining her in her secretarial capacity in the meanwhile. It is, however, clear that she was advised that if convicted that employment too would have to be terminated.
Finally, the record shows that defendant has no prior criminal record, no juvenile record, no history of any substance abuse, no history of any psychological problem and, as noted by the Program Director, "is sincerely sorry for what she has done." In seeking admission to PTI, she was required to state to the Program Director "why she felt she would be a suitable candidate for enrollment." Her reported response was that
she has never been in any trouble before; she has already caused enough embarrassment for herself and her family; she is the sole support of her three dependent children; she feels that she is now in a career position and that a conviction could cause her to lose her current employment and adversely affect future employment opportunities; she will never become involved in criminal activities in the future and she is willing to make full restitution to the Passaic County Board of Social Services and will sign a Civil Judgment in favor of the Welfare Board.
Despite all of the foregoing and the consequent favorable recommendation of the Program Director, 1 the prosecutor rejected defendant's application. The statement of specific reasons, required by State v. Atley, 157 N.J.Super. 157, 384 A.2d 851 (App.Div.1978), relied on Guideline 3(i)(2), which provides that if the crime is "part of a continuing criminal business or enterprise," the applicant ordinarily should not be accepted unless he is able to present "facts or materials demonstrating his amenability to the rehabilitative process, showing compelling reasons justifying his admission and establishing that a decision against enrollment would be arbitrary and unreasonable." In applying this Guideline, the prosecutor, after mischaracterizing defendant's work history between 1981 and 1985 as one of having been "rather steadily employed," 2 concluded in full that
Since these allegations constitute a continuing involvement in criminal activity over the course of several years in an amount of almost $15,000, we must consider whether there were extenuating circumstances, or any particular hardship that might explain why the defendant sought to supplement her income through the receipt of welfare and food stamp monies.
In reviewing the Pre-trial Intervention Evaluation Report, it is noted that the defendant claims she was having "trouble making ends meet." This is hardly a situation which rises to the level of a compelling reason justifying the defendant's admission to the program. In fact, the defendant is well-skilled, and could, and did obtain employment as early as 1981. This is simply and succinctly a case of a defendant seeking to "pad" her income by illegal means.
There has been no showing of compelling reasons justifying this defendant's admission in to the Pre-Trial Intervention Program. Indeed, it is important for the people who are truly deserving and have legitimate need of welfare and for those people who are in a position to work and indeed do so without illegal supplementation from the public dole, that this defendant not be diverted to the PTI Program, but instead be processed through traditional criminal justice system procedures. For the foregoing reasons, the State opposes this defendant's entry into Pre-Trial Intervention.
The prosecutor's evaluation of defendant is further illuminated during the course of her colloquy with the Law Division judge. She explained that her office ordinarily consents to PTI admission when a defendant is charged with welfare fraud only
where there is some indication of the home situation or the factors that lead that defendant to commit welfare fraud and usually then consist of a health problem of perhaps one of the children or the defendant's own health or some other situation which the defendant feels has driven him or her to commit welfare fraud.
These circumstances did not exist here in the prosecutor's judgment because defendant, in her view, is "well educated" and was simply seeking "to pad her income." The prosecutor also expressed what appears to be an entirely unfounded skepticism that defendant would lose her job if not admitted, going so far as to suggest that as "Your Honor well knows there are attorneys in this State with criminal convictions who continue to practice." 3 Her final word on that subject was that
I can't believe that this defendant would only be able to get a job for either four or five...
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