STATE OF NEW JERSEY VS. NEAL POMPER (15-11-1323, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3969-16T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
NEAL POMPER,
Defendant-Respondent.
_______________________________
Argued May 16, 2018 – Decided June 5, 2018
Before Judges Alvarez, Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
15-11-1323.
David M. Liston, Assistant Prosecutor, argued
the cause for appellant (Andrew C. Carey,
Middlesex County Prosecutor, attorney; David
M. Liston, of counsel and on the brief).
Neal Pomper, respondent, argued the cause pro
se.
PER CURIAM
Charged with third-degree insurance fraud and related
offenses, defendant, Neal Pomper, an attorney, was denied Pretrial
Intervention (PTI) by a prosecutor, a decision affirmed by a Law
Division judge. After the case was scheduled for trial, another
judge granted defendant PTI and directed the prosecutor to
consummate a plea offer on the prosecutor's proffered terms, with
one exception: the removal of the requirement that defendant
consent to disbarment. The State appeals. Because the second
judge did not have the authority to reconsider the first judge's
PTI decision or interfere in plea negotiations, we vacate the
implementing orders and remand this case for trial.
I.
Defendant is married and has seven children, one of whom, a
minor, lived with defendant and his wife when defendant applied
for PTI. Defendant has heart problems for which he takes
medication and eye problems that pose a risk to his vision. He
has no prior criminal history.
The State alleges the following facts. In 2011, a contractor
repaired certain flood damage to defendant's home. Defendant had
a legal assistant he employed prepare a false contractor's invoice
and send it to his homeowner's insurance company for payment.
Following an investigation, authorities charged defendant in a May
2015 complaint-warrant with two third-degree crimes, namely,
insurance fraud and attempted theft by deception, and one fourth-
degree crime, forgery.
Defendant applied for PTI. The criminal division manager
recommended his enrollment. A month later, after a Middlesex
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County grand jury indicted defendant for insurance fraud,
attempted theft by deception, forgery, and uttering a forged
instrument, an assistant prosecutor rejected defendant's PTI
application. The assistant prosecutor explained her decision in
a detailed letter that included her analysis of the statutory
criteria for PTI. Defendant's disbarment was not a consideration.
Two months later, the assistant prosecutor responded to
defendant's request for reconsideration based on medical evidence
documenting his heart and eye conditions, as well as statements
given to investigators by the employee who had prepared the forged
invoice. The assistant prosecutor again rejected defendant's PTI
application.
Thereafter, a grand jury charged defendant and his employee
in a superseding indictment with the third-degree crimes of
conspiracy, N.J.S.A. 2C:5-2, insurance fraud, N.J.S.A. 2C:21-
4.6(a) & (b), and attempted theft by deception, N.J.S.A. 2C:5-1
and 2C:20-4; and the fourth-degree crimes of uttering a forged
instrument, N.J.S.A. 2C:21-1(a)(3), and forgery, N.J.S.A. 2C:21-
1(a)(2). The grand jury also charged defendant's employee with
false swearing, N.J.S.A. 2C:28-2(a).
Following the superseding indictment, defendant appealed the
prosecutor's rejection of his PTI application. While the appeal
was pending before a Law Division judge, the parties engaged in
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plea negotiations. The State initially offered a plea with a
probationary sentence. Defendant counter-proposed he
conditionally plead guilty to an offense and resign permanently
from the practice of law in exchange for the State's consent to
PTI. In response, the State offered to consent to PTI for thirty-
six months if defendant agreed to four conditions: conditionally
plead guilty to two counts of the indictment; consent to disbarment
in a form approved by the Office of Attorney Ethics or the Supreme
Court; consent to never again hold public office; and agree that
upon violation of any PTI condition, he serve ninety days in county
jail. This was the State's final offer. Defendant agreed to all
terms except disbarment. Plea negotiations stalled on that issue,
and defense counsel informed the judge she should decide
defendant's PTI appeal.
The Law Division judge (the first judge) upheld the
prosecutor's decision. After analyzing the prosecutor's
consideration of the statutory criteria for PTI, the first judge
determined defendant had "not established by clear and convincing
evidence that the State's decision to reject his PTI application
was either a patent and gross abuse of discretion or arbitrary and
irrational nor has [d]efendant presented compelling reasons for
[his] entry into PTI." Defendant's disbarment played no part in
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the decision. Defendant filed a motion for reconsideration, which
the first judge denied.
Defendant next filed a motion for a non-jury trial and to
have the first judge recuse herself. The first judge granted both
applications. Citing State v. Kern, 325 N.J. Super. 435, 444-45
(App. Div. 1999), she noted a judge who has denied a defendant's
appeal from rejection of a PTI application should not preside over
the defendant's bench trial. The case was reassigned.
The judge who received the case (the second judge) conducted
a pre-trial conference at which he scheduled the case for trial.
After doing so, he asked if the parties could resolve the matter.
During the ensuing discussions, the second judge learned the
State's final plea offer included consenting to PTI on conditions,
including disbarment, which was the only condition defendant would
not accept.
The second judge criticized the prosecutor's insistence on
disbarment, particularly because defendant's offense was unrelated
to his practice of law. The judge believed the prosecutor had no
authority to force defendant's disbarment. Nonetheless, the
prosecutor did not make a new plea offer. The parties confirmed
the trial date and the pre-trial conference ended.
Following the pre-trial conference, and before the trial
date, defendant filed a motion for reconsideration before the
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second judge seeking enrollment in PTI. The second judge granted
the motion. At the conclusion of oral argument he stated: "I'm
putting him in PTI. I find that the [prosecutor's] office relied
on a factor that they're not entitled to rely upon. And so, he
would be admitted to PTI subject to all the other conditions,
which includes a conditional plea."
The judge refused to permit the State to withdraw its plea
offer. Rather, the judge directed the assistant prosecutor to
prepare the plea papers and take the conditional plea on the
State's terms, except defendant's consent to disbarment. The
judge said PTI would be "[thirty-six]" and he would stay his
decision pending the State's anticipated appeal.
The second judge entered an "amended" order "that the Motion
for Reconsideration to admit [d]efendant into PTI is hereby
Granted."1 Later, the judge entered a second order "that defendant
. . . [s]hall be enrolled in PTI without the condition that he
voluntarily agree to relinquish his law license."
The second judge amplified his decision in a written opinion.
After summarizing the action's procedural history and factual
background, he reviewed the procedural and substantive criteria
concerning PTI and case law circumscribing a prosecutor's
1
The appellate record does not include a prior order.
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discretion to approve or disapprove a defendant's admission into
the program. The judge questioned the prosecutor's jurisdiction
over regulation of the Bar. He concluded the prosecutor could not
require defendant's consent to disbarment as a condition of PTI,
because defendant's offense was unrelated to the practice of law.
He noted, however, the prosecutor could vindicate its concern over
defendant practicing law by referring the matter to the Office of
Attorney Ethics. After determining the prosecutor's conditioning
PTI on disbarment was a patent and gross abuse of discretion, the
second judge compelled defendant's admission into PTI without the
condition that he relinquish his law license.
In his written opinion, the second judge discussed neither
the content of the prosecutor's initial letters rejecting
defendant's PTI request nor the content of the first judge's
decisions. As we have noted, defendant's disbarment was not a
consideration in those decisions.
II.
The State appeals from the second judge's implementing order
and presents the following arguments:
[THE SECOND JUDGE] ABUSED THE COURT'S
DISCRETION BY REVERSING [THE FIRST JUDGE'S]
DECISION AND ORDERING DEFENDANT INTO PRETRIAL
INTERVENTION (PTI) OVER THE STATE'S OBJECTION
BECAUSE IT WAS NOT SHOWN CLEARLY AND
CONVINCINGLY THAT THE PROSECUTOR'S DECISION
WAS A PATENT AND GROSS ABUSE OF DISCRETION.
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A. [The Second Judge] Abused the
Court's Discretion by Disregarding
the "Law of the Case" Doctrine
Without Explanation and Reversing a
Co-Equal Court's Decision on the
Same Issue.
B. The Order Compelling Defendant's
PTI Admission Should Be Reversed
Because It Was Not Shown Clearly and
Convincingly That the Prosecutor's
Refusal to Consent Was a Patent and
Gross Abuse of Discretion.
In response, defendant argues the second judge properly
admitted him into PTI, because the prosecutor's unilateral attempt
to have him disbarred was a patent and gross abuse of discretion.
Defendant contends the law-of-the-case doctrine did not bar the
second judge's reconsideration of the first judge's decision.
Defendant also argues the State grossly and capriciously denied
him admission into PTI.
III.
A.
We first address the second judge's reconsideration of the
first judge's decision affirming the prosecutor's rejection of
PTI. The second judge had no statutory or other authority to
reconsider the first judge's decision. Even if he had the
authority, he misapplied the standard of review for a trial judge's
reconsideration of previous orders.
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The criteria for admission into PTI, as well as the procedures
concerning the program, are set forth in N.J.S.A. 2C:43-12 to -22
and Rule 3:28. If a defendant chooses to challenge a prosecutor's
non-consent to PTI, the challenge "shall be made on motion to the
Presiding Judge of the Criminal Division or to the judge to whom
the case has been assigned within ten days after the rejection."
R. 3:28(h). "[T]here shall be no pretrial review by an appellate
court if the rejection is upheld by the designated judge or the
Assignment Judge." R. 3:28(f). A defendant may seek appellate
review of the denial of his admission into PTI "on appeal from a
judgment of conviction." R. 3:28(g).
Neither the statutory PTI provisions nor Rule 3:28 authorize
a trial judge to review another judge's PTI decision. We have
previously explained:
[N]othing in the Act or the rules provide that
a judge's decision of a PTI appeal can be
appealed to or reversed by another Criminal
Part judge. Rather, Rule 3:28(g) provides
that a Criminal Part judge's denial of a PTI
appeal is challengeable by appeal to this
court after a judgment of
conviction. Further, nothing suggests that a
PTI appeal decided by one judge can be decided
anew by a second judge. Such duplicative and,
in this case, conflicting rulings by different
Criminal Part judges are not contemplated by
the Act or the rules.
[State v. Waters, 439 N.J. Super. 215, 223-24
(App. Div. 2015).]
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In fact, nothing in the Rules of Criminal Procedure authorize
a party to ask for reconsideration of a judge's initial PTI
decision, though a comment on the civil practice rule authorizing
reconsideration states:
While the rule does not expressly apply
to criminal actions, in view of the absence
of a corollary criminal practice rule, the
philosophy of the rule was nevertheless
applied to a prosecutor's motion for
reconsideration of a trial court order
admitting a defendant to a pretrial
intervention program over prosecutorial
objection. See State v. Fitzsimmons, 286 N.J.
Super. 141 (App. Div. 1995), remanded 143 N.J.
482 (1996).
[Pressler & Verniero, Current N.J. Court
Rules, cmt. 2 on R. 4:49-2 (2018).]
Assuming the applicability of either the civil rule or its
philosophy to criminal matters, the purpose of reconsideration is
not to permit a party "to re-argue the motion that has already
been heard for the purpose of taking the proverbial second bite
of the apple." Fitzsimmons, 286 N.J. Super. at 147 (quoting Rule
4:49-2). Instead, "its purpose is to allow the losing party to
make 'a statement of the matters or controlling decisions which
counsel believes the court has overlooked or to which it has
erred.'" Ibid. (quoting Rule 4:49-2). For these reasons, a court
should grant a motion for reconsideration only "for those cases
which fall into that narrow corridor in which either (1) the Court
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has expressed its decision based upon a palpably incorrect or
irrational basis, or (2) it is obvious that the Court either did
not consider, or failed to appreciate the significance of
probative, competent evidence." Fusco v. Bd. of Educ. of Newark,
349 N.J. Super. 455, 462 (App. Div.) (2002) (quoting D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
The first judge committed neither of these errors, but the
second judge did not reconsider the first judge's decision under
this standard. Rather, the second judge arbitrarily analyzed the
State's plea offer as if it were a prosecutor's response to
defendant's application for PTI, which it was not. A defendant
must apply for PTI "at the earliest possible opportunity, including
before indictment, but in any event no later than twenty-eight
days after indictment." R. 3:28(h). Defendant did so — twice —
long before the second judge became involved in the case. Each
time, the prosecutor timely responded.
We find nothing improper or inappropriate about a prosecutor
offering PTI as one of several terms of a plea offer after the
prosecutor has exercised the discretion to reject a defendant's
PTI application, provided the plea offer does not otherwise include
an unlawful condition. Such a decision falls well within a
prosecutor's "broad discretion in selecting matters for
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prosecution." In re Investigation Ringwood Fact Finding Comm.,
65 N.J. 512, 516 (1974).
Even if defendant appropriately filed his second motion for
reconsideration — and we do not suggest he did — the second judge
should have referred it to the first judge, whose decision was
targeted. This referral should have been made as a matter of
common sense to avoid inconsistent results. See O'Brien v.
O'Brien, 259 N.J. Super. 402, 405-07 (App. Div. 1992).
Defendant stated at oral argument the first judge had recused
herself, implying the first judge was unavailable to hear yet
another motion for reconsideration. That was not the case. The
first judge recused herself from presiding over defendant's bench
trial. She based her decision on a prior Appellate Division
ruling, which in turn based its decision on Rule 3:28(c). Kern,
325 N.J. Super. at 444-45.
When the court decided Kern, Rule 3:28(c) applied to
defendants who had been admitted to PTI and then returned "to the
ordinary course of prosecution."2 Kern, 325 N.J. Super. at 445.
Rule 3:28(c)(4) precluded the admissibility against a defendant
in subsequent proceedings of, among other documentary evidence,
program records, investigative reports, and statements made by the
2
Rule 3:28(c)(4) was amended June 15, 2007 to be effective
September 1, 2007.
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defendant to program staff. The rule formerly included a provision
that "[n]o such hearing with respect to such defendant shall be
conducted by the designated judge who issued the order returning
the defendant to prosecution in the ordinary course." Kern, 325
N.J. Super. at 444 (quoting R. 3:28(c)(4) (1999)).
In Kern, the Appellate Division held "the spirit and policy
of the rule certainly support our determination that a judge who
denies an applicant's appeal from PTI rejection not also sit on
the ensuing bench trial for the criminal charges." Id. at 445.
Nothing in the former rule or Kern precludes a judge from hearing
a motion for reconsideration of her previous PTI decision. For
those reasons, the second judge should have dismissed the motion
or referred it to the first judge.
B.
The second judge compounded his error when he refused to
permit the State to withdraw its plea offer and directed the State
to consummate the plea under the terms it had proposed, with the
exception of defendant's disbarment. He had no authority to
participate in plea negotiations, and he certainly had no authority
to insist the State accept a plea on his modified terms.
Prosecutors and defense attorneys "may engage in discussions
relating to pleas and sentences." R. 3:9-3(a). The court, "[o]n
request of the prosecutor and defense counsel, . . . may permit
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the disclosure to it of the tentative agreement and the reasons
therefore . . . or, if no tentative agreement has been reached,
the status of the negotiations toward a plea agreement." R. 3:9-
3(c) (emphasis added). The court may indicate whether it will
"concur in the tentative agreement or, if no tentative agreement
has been reached and with the consent of both counsel, the maximum
sentence it would impose in the event the defendant enters a plea
of guilty," assuming the information in the presentence report
"supports its determination that the interest of justice would be
served thereby." R. 3:9-3(c).
"What the trial court clearly may not do, however, is
participate in plea negotiations." State v. Williams, 277 N.J.
Super. 40, 47 (App. Div. 1994) (citation omitted); accord, R. 3:9-
3(a) & (c). The Williams court explained, "[b]ecause a judge may
not participate in plea negotiations, a judge may not tender a
plea offer, especially over the objection of the prosecutor." 277
N.J. Super. at 48 (citing Com v. Gordon, 574 N.E. 2d 974, 975-76
(1991)). The court also noted, "[v]arious courts have observed
that such action improperly assumes the executive or prosecutorial
power and, therefore, violates the doctrine of separation of
powers." Ibid.Here, the second judge not only interfered in plea
negotiations, he directed the prosecutor to consummate the plea
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by preparing the appropriate documents. In doing so, the second
judge improperly assumed the executive or prosecutorial power.
For this reason, his orders must be vacated.
To be sure, the second judge had valid concerns about the
State including disbarment as part of a plea agreement. A
prosecutor is not necessarily precluded from negotiating as part
of a plea a result that cannot be obtained under statutory or
other authority. See State v. Hupka, 203 N.J. 222, 242 (2010)
(explaining under the forfeiture of public office statute,
N.J.S.A. 2C:51-2, "when a defendant is charged with a crime that
might be regarded as involving or touching his or her public
position, the State should, likewise, require an allocution that
either establishes the connection between the crime and the
position to enable the court to sustain a subsequent forfeiture
and disqualification order, or, alternatively, should negotiate a
voluntary disqualification from a future position" (emphasis
added)). Such authority notwithstanding, "[t]he State
Constitution declares '[t]he Supreme Court shall have jurisdiction
over the admission to the practice of law and the discipline of
persons admitted.'" Robertelli v. N.J. Office of Atty. Ethics,
224 N.J. 470, 476 (2016) (second alteration in original) (quoting
N.J. Const., art. VI, § 2, ¶ 3).
15 A-3969-16T1
We need not, however, address whether the State, as part of
a plea agreement, can insist on an attorney's disbarment, because
no such plea agreement was presented to the second judge. If it
had been, and if the judge deemed it contrary to the interests of
justice, the judge had the authority to disapprove it. State v.
Brimmage, 271 N.J. Super. 369, 374 (App. Div. 1994). He did not
have the authority to impose a modified plea agreement.
For the foregoing reasons, we vacate the orders granting
reconsideration and enrolling defendant in PTI. We remand the
matter for trial.
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