STATE OF NEW JERSEY VS. KRISTIN M. HANSENÂ (14-01-0100, MERCER COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-1637-16T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    KRISTIN M. HANSEN,
    Defendant-Appellant.
    ________________________________
    Submitted November 9, 2017 – Decided November 29, 2017
    Before Judges Alvarez and Currier.
    On appeal from Superior Court of New Jersey,
    Law Division, Mercer County, Indictment No.
    14-01-0100.
    Robin Kay Lord, attorney for appellant.
    Angelo J. Onofri, Mercer County Prosecutor,
    attorney  for   respondent  (Laura  Sunyak,
    Assistant Prosecutor, of counsel and on the
    brief).
    PER CURIAM
    Defendant Kristin Hansen appeals from the March 29, 2016
    order confirming the prosecutor's denial of her application for
    entry into the Pretrial Intervention Program (PTI).                   Because we
    agree with the trial court that defendant has not established that
    the prosecutor's decision to deny PTI was a patent and gross abuse
    of his discretionary authority, we affirm.
    A department store's loss prevention supervisor observed
    defendant pushing her child in a stroller.                         The security officer
    continued to watch as she shopped, placed numerous items into her
    stroller, went into a fitting room, and moved the merchandise into
    her handbag and diaper bag.               Defendant then attempted to exit the
    store without paying for the merchandise.                           She was stopped by
    security and identified herself as a lieutenant at the Middlesex
    County Corrections Center.                 The merchandise removed from her
    stroller and purse was valued at over $1600.                                 Defendant was
    arrested    after       the   police      reviewed      the        store's    surveillance
    system, which confirmed the security officer's account of events.
    Defendant was charged in an indictment with third-degree
    shoplifting,       in    violation         of       N.J.S.A.       2C:20-11(b)(2).      Her
    application for entry into PTI was approved by the Criminal Case
    manager.    In her PTI interview, defendant stated she was shopping
    at   the   store    when      she   was    stopped      by     a    store    employee   who
    mistreated her.         She admitted that she told the security officer
    of her position at the corrections center.                     She said she went near
    the exit doors but denied leaving the store with any merchandise.
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    In his review of the PTI application, the prosecutor agreed
    to admit defendant into the program, conditioned on her resigning
    from her public employment.           Noting that "PTI decisions are
    primarily individualistic in nature and . . . [he] must consider
    an   individual     defendant's   features        that   bear   on    his    or   her
    amenability    to    rehabilitation,"       the    prosecutor        reviewed     the
    application    with     defendant's       employment      as    a     "sworn      law
    enforcement officer in mind."
    The State found defendant was an appropriate candidate for
    PTI if she were an ordinary citizen, but not as a law enforcement
    officer.   The prosecutor stated:
    [t]he State believes, due to Defendant's
    employment, this crime can be viewed as a
    breach of the public trust. Law enforcement
    officials should be held to a higher standard,
    and it can be said they are always on duty and
    are expected to avoid breaking the law.
    Additionally, Defendant's consistent failure
    to fully accept responsibility for her actions
    and to mitigate her offense supports the
    State's contention that she would not be
    responsive to rehabilitation.
    The State, therefore, conditioned defendant's entry into PTI upon
    the forfeiture of her job.        Defendant appealed the decision to the
    trial court.
    In   a   comprehensive      written     opinion,      the      trial     judge
    considered the written submissions and oral argument of counsel.
    He found that the State's position was "carefully reasoned and
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    logical."     As defendant was employed as a county corrections
    officer at the time of this offense, the judge noted that she was
    empowered under the applicable statute "to act as [an officer] for
    the detection, apprehension, arrest, and conviction of offenders
    against the law."    N.J.S.A. 2A:154-3(a).       In finding that it was
    not a patent and gross abuse of discretion for the State to hold
    defendant to a higher standard, the judge said that "[t]he State
    reasonably    concluded   that     the    defendant's     conduct   was      so
    inconsistent with the inherent duties of a law enforcement officer
    that she could no longer be permitted to serve in that position."
    The judge considered and rejected defendant's argument that
    under State v. DeMarco, 
    107 N.J. 562
    , 571 (1987), the prosecutor
    could not impose such a condition.            Although finding DeMarco
    factually different from the circumstances here, the judge noted
    that the Supreme Court sanctioned the imposed condition, that the
    defendant resign from his public employment.            Defendant's appeal
    was denied.
    In this appeal, defendant argues that the trial court erred
    in finding the State's denial of her application for PTI was not
    a patent and gross abuse of discretion.        We disagree and affirm.
    Our scope of review of a prosecutor's decision to deny
    admission to PTI is "severely limited."        State v. Negran, 
    178 N.J. 73
    ,   82   (2003).   We   afford    the    prosecutor's    decision     great
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    deference.    State v. Wallace, 
    146 N.J. 576
    , 582, 589 (1996).       A
    trial judge can only overturn a prosecutor's decision to deny PTI
    upon finding a "patent and gross" abuse of discretion.      State v.
    Kraft, 
    265 N.J. Super. 106
    , 112-13 (App. Div. 1993).
    Our review of a PTI application exists "to check only the
    most egregious examples of injustice and unfairness."      State v.
    Nwobu, 
    139 N.J. 236
    , 246 (1995) (quoting Kraft, 
    supra,
     265 N.J.
    at 111).     In short, it is expected that a prosecutor's decision
    to reject a PTI applicant "will rarely be overturned."      Wallace,
    
    supra,
     
    146 N.J. at 585
     (quoting State v. Leonardis, 
    73 N.J. 360
    ,
    380 n.10 (1977)).     Absent evidence to the contrary, a reviewing
    court must assume that "the prosecutor's office has considered all
    relevant factors in reaching the PTI decision."    Nwobu, 
    supra,
     
    139 N.J. at
    249 (citing State v. Dalglish, 
    86 N.J. 503
    , 509 (1981)).
    Defendant argues on appeal, as she did to the trial judge,
    that it was a patent and gross abuse of discretion for the State
    to condition her admission into PTI on the forfeiture of her
    employment because "there is no correlation between the forfeiture
    of employment condition and the seriousness of the shoplifting
    offense."    Therefore, she contends that the forfeiture condition
    does not further the rehabilitative goals of PTI.
    It is undisputed that the prosecutor considered all of the
    criteria enumerated in N.J.S.A. 2C:43-12(e).      In fact, the State
    5                           A-1637-16T4
    agreed that if defendant were to be considered as an ordinary
    citizen, she would be eligible for admission into the program.
    However, Guideline 3 promulgated under Rule 3:28, also lists a
    number of factors for a prosecutor's consideration.         Section (i)
    requires an assessment of the nature of the offense.             "If the
    crime was . . . a breach of the public trust where admission to a
    PTI program would deprecate the seriousness of defendant's crime,
    the defendant's application should generally be rejected."              R.
    3:28.      After its consideration of this guideline, the State
    concluded:    "Defendant's   employment,   the   circumstances   of   the
    offense,     and   Defendant's    statements     in   support    of   her
    application," require her admission into PTI be conditioned on her
    "forfeiture of public employment."
    In DeMarco, supra, 
    107 N.J. at 565
    , the defendant police
    officer was indicted for aggravated assault after he struck another
    man with his nightstick.     The prosecutor agreed to DeMarco's entry
    into PTI, conditioned on his resignation of his position.         
    Id. at 566
    .    The prosecutor relied on the violent nature of the offense,
    DeMarco's continued attempt to justify the assault as an act of
    self-defense, and that the offense constituted a breach of the
    public trust reposed in the defendant as a police officer.            
    Id. at 565-66
    .    The Court stated:
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    we glean the principle that defendant's
    employment as a police officer does not
    necessarily preclude his admission into PTI,
    but that it is one factor to be considered in
    judging him as a whole person . . . . The
    prosecutor's    reliance     on    defendant's
    employment as a police officer does not
    subvert the goals underlying PTI and does not
    constitute a "patent and gross" abuse of
    discretion.    Likewise, the prosecutor is
    justified in viewing defendant's conduct as a
    breach of the public trust. A police officer
    is under a duty to uphold the law and maintain
    public safety . . . . [T]he prosecutor was not
    compelled to deny defendant admission into
    PTI.
    [Id. at 569.]
    Like in DeMarco, defendant did not accept responsibility for
    her actions.      She also invoked her position as a high-ranking
    officer in the Middlesex County Sheriff's Department when stopped
    by the security officer in the store.            It was within the bounds
    of the prosecutor's discretion to find defendant's actions to be
    a breach of the public trust and that she was not amenable to
    rehabilitation.      Defendant   was   a   law    enforcement   officer,    a
    position in which she is held to a higher standard.        As an officer,
    she was expected to enforce the law as to others and bound to
    uphold the law as to herself.
    Here, the prosecutorial decision has not "gone so wide of the
    mark sought to be accomplished by PTI that fundamental fairness
    and justice require judicial intervention."           Wallace, supra, 146
    7                                A-1637-16T4
    N.J. at 583 (quoting State v. Ridgway, 
    208 N.J. Super. 118
    , 130
    (Law Div. 1985).   Rather, the trial judge applied the appropriate
    deferential   standard   of   review   to   reach   a   sound   decision.
    Defendant has not met her burden of proving the prosecutor's
    decision was a gross and patent abuse of discretion.
    Affirmed.
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