STATE OF NEW JERSEY VS. AISLING H. SMITH-RENSHAW (S-2019-0064-0818, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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 i n other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5124-18T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
AISLING H. SMITH-RENSHAW,
Defendant-Respondent.
_______________________________
Submitted January 7, 2020 - Decided June 8, 2020
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey,
Law Division, Gloucester County, Complaint No. S-
2019-0064-0818.
Christine A. Hoffman, Acting Gloucester County
Prosecutor, attorney for appellant (Douglas Benjamin
Pagenkopf, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the briefs).
Testa Heck Testa & White, PA, attorneys for
respondent (Michael L. Testa, Jr. and Anthony Mario
Imbesi, on the brief).
PER CURIAM
The State of New Jersey appeals from a July 22, 2019 order admitting
defendant Aisling H. Smith-Renshaw into the Pre-Trial Intervention Program
(PTI) over the prosecutor's objection. The State contends the trial court erred
in finding the prosecutor failed to consider information defendant did not
submit with her application to PTI and that the circumstances do not clearly
and convincingly establish its refusal to permit defendant's diversion was a
patent and gross abuse of the prosecutor's discretion. Having reviewed the
record, we agree and conclude the trial judge improperly substituted her
judgment for the prosecutor's on whether defendant's offenses constituted a
pattern of anti-social behavior, requiring reversal of the order admitting
defendant into PTI.
The State acknowledges, however, that the prosecutor was without
information to assess statutory criteria five and six, N.J.S.A. 2C:43-12(e)(5)
and (6), because defendant only submitted materials supporting those factors
to the trial court after the prosecutor had already considered and denied
defendant's application to PTI. Because those factors are critical to assessing
an applicant's amenability to correction and responsiveness to rehabilitation,
N.J.S.A. 2C:43-12(b)(1), and only because the prosecutor has expressed on
this appeal a willingness to consider the materials defendant belatedly
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submitted in reassessing defendant's application to PTI, we deem a remand to
the prosecutor for that purpose appropriate.
Defendant, a school nurse, allegedly used the name and licensing
information of a nurse practitioner who treated defendant's family to obtain
prescription medication on eight different occasions over the course of more
than sixteen months. Defendant also allegedly forged the victim's name to
letters defendant wrote to school officials excusing absences and seeking
reduced fees and accommodations for her children. Some of those letters,
which were allegedly composed on defendant's work computer, were sent to
officials in the same district in which she was employed. Defendant was
charged in a thirty-four count complaint - summons with four counts of fourth-
degree forgery, N.J.S.A. 2C:21(a)(2); eight counts of third-degree forgery,
N.J.S.A. 2C:21-1(a)(3); fourth-degree falsifying records, N.J.S.A. 2C:214(a);
twelve counts of fourth-degree identity crime — impersonating another in oral
or written application for services, N.J.S.A. 2C:21-l7(a)(3); fourth-degree
falsifying a record relating to medical care, N.J.S.A. 2C:21-4.1; and eight
counts of third-degree obtaining possession of a controlled dangerous
substance by fraud, N.J.S.A. 2C:35-l3.
A-5124-18T1
3
Defendant's application for PTI was rejected by the criminal division
manager relying on the police investigation and defendant's interview by a
probation officer. In a lengthy letter in which she acknowledged that
defendant had no prior criminal record, the criminal division manager
concluded the charged offenses constituted a continuing pattern of anti-social
behavior, N.J.S.A. 2C:43-12(e)(8), and that defendant was charged with a
crime representing a breach of public trust that made admission into the
program inappropriate, Rule 3:28-4(b)(1).
The prosecutor agreed with the decision of criminal case management.
Addressing each of the seventeen statutory factors, N.J.S.A. 2C:43-12(e), the
prosecutor placed the most weight on the State's interest in prosecuting those
who falsify medical records for their own gain; that "defendant's criminal acts
occurred over several years and were varied between false prescriptions and
forged letters," thereby constituting "the very definition of 'continuing pattern
of anti-social behavior;'" and that public prosecution of defendant, a school
nurse, was necessary in order to avoid deprecating the seriousness of her
crimes committed against the medical community. Summing up the reasons
for rejecting defendant's application, the prosecutor wrote:
Society does not benefit by allowing those who
commit fraudulent acts against the medical community
A-5124-18T1
4
for personal gain into PTI. The State rejects this
application, in particular, based on [the] continuous
nature of [defendant's] actions. The State also rejects
this applicant, in particular, due to the specific nature
of these crimes and their impact on [the victim] and
her reputation. Forging prescriptions for one's
personal use may only impact the person taking the
medication. Forging documents to allow
accommodations at athletic events and in college
housing undermines the integrity of those institutions
and makes light of the needs of those who truly need
accommodations. Finally, the State rejects this
applicant, in particular, due to her position as a nurse
at that time of these offenses. That she was a school
nurse is especially repugnant as her actions could have
jeopardized the safety of the students in her care.
Even if she were not a school nurse, the fact that a
licensed nurse forged documents to accommodate, and
seemingly, give her own children some sort of
perceived advantage is offensive. This defendant is
not suited for PTI.
Defendant appealed, and the Law Division judge ordered defendant
admitted to the program over the prosecutor's objection. In a written opinion,
the judge found the State failed to conduct "a fact-sensitive analysis of the
personal problems and character traits of [d]efendant." Specifically, the judge
found defendant, a divorced single mother of three, was the victim's patient for
several years, being treated for anxiety, depression and fibromyalgia.
Defendant's daughters were also patients of the victim. The court noted that
defendant "asserts that she was overwhelmed by the stress of her divorce, her
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personal mental health condition" and the similar conditions of her children,
including two who suffered from obsessive compulsive disorder. The court
also noted the prescriptions were for alprazolam, an anti-anxiety drug, for
amounts within recommended guidelines and that defendant's counsel
proffered that the victim issued prescriptions to defendant for the same drug
"in the exact same dosages" subsequent to the fraudulent prescriptions
defendant prepared. 1
The court concluded the State failed to address whether defendant's
personal problems and character traits demonstrated an amenability to
rehabilitation. Specifically, the court found "[t]he fraudulent prescriptions and
the letters about her daughters are rooted in [d]efendant's and her daughter 's
personal problems and mental health issues," that defendant had "expressed
remorse and is open to rehabilitation," that the "State gave no consideration to
the character letters submitted by the defense, to [d]efendant's standing in the
community and to her employment performance," and that the State ascribed
no weight "to the interest of the victim because they never called [the victim]
for her input."
1
The State points out that the victim did so without knowledge of the fraud
and represents the victim brought the matter to the attention of police and
wished to pursue prosecution.
A-5124-18T1
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The court further found there was "no indication that the crimes charged
are in anyway related to [defendant's] employment as a school nurse," and that
the State's consideration of that factor was inappropriate and "tantamount to a
per se rejection." The court noted "[t]here is no per se disqualification of
school nurses from PTI, merely because their status as school nurses."
Although conceding that "[t]he State properly characterized the
defendant's crime as falling within the ambit of New Jersey Guideline 3(i)(2) [2]
which generally may result in a denial," the court found "the State's rejection
of defendant's application was based wholly upon the nature of the offense.
Individualistic factors played no role in the decision. No analysis was done."
The court concluded that "[d]efendant demonstrate[d] extraordinary
circumstances sufficient to overcome the presumption against PTI admission ,
and that the State's denial was based on unsupported assertions with respect to
the nature of the offense and other irrelevant and inappropriate factors." The
court found "based on the totality of the circumstances and for good cause
shown," that the State's failure to consider all relevant factors and its
2
The Guidelines were deleted along with Rule 3:28 effective July 1, 2018.
Pressler & Verniero, Current N.J. Court Rules, R. 3:28 (2020). Former
Guideline 3(i)(2) reflected the presumptions against admission contained in
N.J.S.A. 2C:43-12(b)(2). See id. at cmt. on R. 3:28.
A-5124-18T1
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consideration of an inappropriate factor "amounted to a clear error in
judgment" rising to "a patent and gross abuse of discretion subverting the goals
of the Pre-Trial Intervention Program."
The State appeals, contending the trial court erred in finding the
prosecutor's rejection of defendant's PTI application constituted a patent and
gross abuse of discretion. It argues defendant's application did not include the
many letters and detailed information about defendant's and her daughter's
circumstances that the trial court upbraided the prosecutor for failing to take
into account. The State maintains the prosecutor's view of defendant's actions
as a continuing pattern of anti-social behavior was a valid consideration, that
his denial of the application did not constitute a per se rejection or otherwise
constitute a patent and gross abuse of discretion. We agree.
Having read the Law Division judge's opinion, it is obvious that had the
judge been the prosecutor, defendant would have been admitted to PTI. The
cases, however, are unanimous in holding a reviewing court is not to evaluate
the case "as if it stood in the shoes of the prosecutor." State v. Wallace, 146
N.J. 576, 589 (1996). As the Supreme Court has repeatedly reminded, "PTI is
essentially an extension of the charging decision, therefore the decision to
grant or deny PTI is a 'quintessentially prosecutorial function.'" State v.
A-5124-18T1
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Roseman, 221 N.J. 611, 624 (2015) (quoting Wallace, 146 N.J. at 582).
"[B]ecause it is the fundamental responsibility of the prosecutor to decide
whom to prosecute," State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993),
"the prosecutor has great discretion in selecting whom to prosecute and whom
to divert to an alternative program, such as PTI." Wallace, 146 N.J. at 582.
We are to afford the prosecutor's decision on diversion to PTI an
"enhanced" or "extra" level of deference, State v. Baynes, 148 N.J. 434, 443
(1997), in accord with the Court's "expectation that 'a prosecutor's decision to
reject a PTI applicant will rarely be overturned,'" ibid. (quoting Wallace, 146
N.J. at 585) (internal quotation marks omitted)). Accordingly, the scope of
judicial review "is severely limited" and "serves to check only the 'most
egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73,
82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977).
"A defendant attempting to overcome a prosecutorial veto must 'clearly
and convincingly establish that the prosecutor's refusal to sanction ad mission
into a PTI program was based on a patent and gross abuse of his discretion'
before a court can suspend criminal proceedings under Rule 3:28 without
prosecutorial consent." Negran, 178 N.J. at 82 (quoting State v. Nwobu, 139
A-5124-18T1
9
N.J. 236, 246 (1995)) (internal quotation marks omitted). The Court has
instructed that
[o]rdinarily, an abuse of discretion will be manifest if
defendant can show that a prosecutorial veto (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. 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 Pretrial Intervention.
[State v. Bender, 80 N.J. 84, 93 (1979).]
Applying those standards to this record makes clear the judge was
without authority to suspend criminal proceedings against defendant and order
her admitted to PTI over the prosecutor's objection. Defendant does not
dispute that she did not submit with her PTI application the information about
her and her daughters' mental health conditions or the many letters on which
the trial court relied in its findings. The judge was thus wrong to override the
prosecutor's decision based on his failure to consider relevant information
defendant never supplied him. See id. at 94.
We also reject the court's finding that the prosecutor inappropriately
considered defendant's position as a school nurse, and that his decision to deny
her entry into PTI "was tantamount to a per se rejection." Although the
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prosecutor certainly considered defendant's employment as a school nurse, we
do not believe his letter could be fairly considered a per se rejection of her
application based on either her licensure or employment as a nurse. The
prosecutor did not rely on the presumption contained in Rule 3:28-1(e) against
admission for public employees charged with a crime touching employment
but instead considered defendant's status as a factor in the nature of the offense
and whether it was "a breach of the public trust where admission to a PTI
program would deprecate the seriousness of defendant's crime" under Rule
3:28-4(b)(1)(iv).
The prosecutor asserted defendant allegedly forged letters to school
officials in her own district to excuse absences of one of her children using a
work computer to do so. Obviously cognizant that whether defendant's alleged
acts could be considered a breach of the public trust might be a close question
here, see Bender, 80 N.J. at 96; State v. Denman, 449 N.J. Super. 369, 379
(App. Div. 2017), the prosecutor emphasized the effect of defendant's actions
on the victim and her professional reputation. He noted defendant forged
documents to allow accommodations and perceived advantages for her
children at school, which undermines the integrity of the institutions, and that
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her actions in forging prescriptions "could have jeopardized the safety of
students in her care."
Having considered the prosecutor's explanation for his consideration of
defendant's position as a school nurse, we cannot find that factor to have been
inappropriate in weighing the nature of the offenses, and certainly cannot find
his thorough explanation of its relevance amounted to a per se rejection of her
application. The prosecutor's finding that defendant's conduct involved a
continuing pattern of anti-social behavior was likewise a valid consideration
entitled to deference. See Nwobu, 139 N.J. at 254.
Having reviewed the record, we cannot say the prosecutor's decision to
weigh against defendant the nature of the offenses, the facts of the case, the
needs of society, that the conduct constituted a continuing pattern of anti -
social behavior, and that the harm done to society by diversion would
outweigh the benefits constituted a clear error of judgment on this record.
Instead, the court erred by interjecting itself into the process of weighing
applicable factors pertinent to the PTI application. It predicated its decision on
its own assessment of the factors, rather than confining itself to whether the
prosecutor considered all relevant factors, considered inappropriate factors or
A-5124-18T1
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made a clear error in judgment. Bender, 80 N.J. at 73. We accordingly
reverse the order admitting defendant into PTI.
Although we find no patent and gross abuse of the prosecutor's
discretion, the State acknowledges that the prosecutor was without information
to assess factors five, "(t)he 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," and six, "the
likelihood that the applicant's crime is related to a condition or situation that
would be conducive to change through [her] participation in supervisory
treatment." N.J.S.A. 2C:43-12(e)(5) and (6).
Because both factors are critical to judging a defendant's amenability to
correction and responsiveness to rehabilitation, N.J.S.A. 2C:43-12(b)(1), and
because the prosecutor has expressed a willingness to reassess defendant's
application in light of the information she belatedly provided, we deem a
remand to him to reconsider defendant's application appropriate. See State v.
Dalglish, 86 N.J. 503, 509-10 (1981). Given the passage of time, the review
should be ab initio and defendant may bring any pertinent information bearing
A-5124-18T1
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on her PTI application to the attention of the prosecutor. See State v. Coursey,
445 N.J. Super. 506, 512-13 (App. Div. 2016).
The order admitting defendant into PTI is reversed, the prosecutor's
decision rejecting defendant from PTI is vacated and the matter is remanded to
the prosecutor for reconsideration in accordance with this opinion. We do not
retain jurisdiction.
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