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N.J.S.A. 2C:20-4a, and was sentenced to five years of probation, restitution in the amount of $3,811.33 and appropriate fines and penalties."> Original Wordprocessor Version

This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5793-04T45793-04T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. LORETTA MINGIN, Defendant-Appellant. _________________________________________________

Submitted October 24, 2006 - Decided January 9, 2007 Before Judges Kestin and Payne. On appeal from Superior Court of New Jersey, Law Division, Camden County, 04-04-0448. Robert D. Bernardi, Burlington County Prosecutor, attorney for appellant (Deborah A. Siegrist, Assistant Prosecutor, of counsel and on the brief). Yvonne Smith Segars, Public Defender, attorney for respondent (Timothy P. Reilly, Designated Counsel, and on the brief). PER CURIAM Defendant Loretta Mingin appeals from the affirmance by Judge Linda Baxter of the determination of the

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Burlington County prosecutor to deny defendant entry into the County's pretrial intervention (PTI) program. Defendant subsequently pled guilty to one count of third-degree theft by deception, N.J.S.A. 2C:20-4a, and was sentenced to five years of probation, restitution in the amount of $3,811.33 and appropriate fines and penalties. The record reveals that defendant, who had been employed as a judiciary clerk in Burlington County's criminal case management office, stole (or, she claims, "found" but did not return) a co-worker's credit card and allegedly utilized it in the period from December 23, 2003 through January 20, 2004 to make approximately forty illegal purchases at various stores, including a diamond and sapphire necklace for herself, a cat condo, liquor, and cigarettes. Nine of the transactions were the subjects of a twenty-nine-count indictment charging one count of third-degree wrongful impersonation, N.J.S.A. 2C:20-4a, one count of fourth-degree unlawful theft or receipt of a credit card, N.J.S.A. 2c:216c(1), ten counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h, eight counts of fourth-degree forgery, 139 N.J. 236, 252 (1995). The appeal was therefore denied. I. On appeal to us, defendant claims that the prosecutor's determination to deny PTI constituted a patent and gross abuse of discretion, and that the court erred in finding otherwise. Specifically, defendant claims that the court was mistaken in concluding that her conduct constituted a continuing criminal business or enterprise. She argues additionally that the prosecutor improperly used the fact that the crime was not victimless in denying her application, and that the prosecutor's improper usage should have led to a reversal by the trial judge. And finally, defendant argues that the court erred in declining to consider the difficulties defendant will experience in attempting to obtain work when burdened by a criminal record. A prosecutor's determination to deny admission to PTI must be accorded great deference. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). In order to obtain a reversal of a prosecutor's decision to deny admission to PTI, a defendant must demonstrate by clear and convincing evidence that the prosecutor's refusal to sanction admission was based upon a patent and gross abuse of discretion. Id. at 382. Ordinarily, 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) (citation omitted).] A trial court's review of a prosecutor's decision is limited to the reasons given by the prosecutor for his or her

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action. State v. Dalglish, 86 N.J. 503, 509 (1981); State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993). The court may not substitute its own view for that of the prosecutor, even if the trial court disagrees with the decision or finds it to be harsh. State v. DeMarco, 107 N.J. 562, 566-67 (1987); Kraft, supra, 265 N.J. Super. at 112-13; see also, Nwobu, supra, 139 N.J. at 247-49. The reason for this elevated standard of review stems from "[t]he need to preserve prosecutorial discretion in deciding whether to divert a particular defendant from the ordinary criminal process . . . ." State v. Dalglish, supra, 86 N.J. at 509. Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options. [Id. at 111.] In the present case, after a thorough review of the record in this matter and consideration of arguments of counsel, Judge Baxter found no grounds for reversal of the prosecutor's decision. We affirm that conclusion, substantially for the reasons set forth by the judge in her oral opinion. We add only that we find no error in the court's affirmance of the prosecutor's conclusion that defendant was engaged in continuing criminal enterprise. We concur with the court's determination that defendant's series of deliberate and planned unlawful acts, consisting of the repeated use of a stolen credit card for the purpose of enriching her by adding to her worldly possessions, fit within the definition of such an enterprise. Bender, supra, 80 N.J. at 95; State v. Marie, 200 N.J. Super. 424, 429-30 (Law Div 1984). That the period during which the indicted offenses occurred spanned only two weeks does not remove them, as a matter of law, from the ambit of a continuing criminal enterprise. The court's use of the word "activity," instead of "enterprise," at one point in her opinion is a matter that we find immaterial. We are also satisfied that the prosecutor's consideration of the fact that the crime was not victimless when rejecting defendant's PTI application did not warrant reversal. R. 3:28, Guideline 1(c), identifying a purpose of PTI, "provides for the use of PTI as a mechanism for minimizing penetration into the criminal process for broad categories of offenders accused of 'victimless crimes,' without relinquishing criminal justice control over such persons while statutes proscriptive of such behavior remain in force." A fair reading of the prosecutor's letter discloses that the fact that defendant's crime had an identified victim was not given undue consideration or utilized as a bar to entry into PTI by the prosecutor, but was merely identified as a factor relevant to a determination of eligibility. The relevance of the existence, or not, of a victim in this case becomes clear in light of the requirement of 291 N.J. Super. 171, 18081 (App. Div. 1996). II.
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Defendant additionally claims that she was denied equal protection, because she was treated differently from other "similarly situated" defendants, charged with welfare fraud, who were admitted to PTI. We reject defendant's argument on the ground that defendant has failed to present independent evidence that denial of admission was based on the consideration of an irrelevant or inappropriate factor bearing no relationship to the goals of PTI. State v. Sutton, 80 N.J. 110, 119, 121-22 (1979). Affirmed.

(continued) (continued) 10 A-5793-04T4 January 9, 2007 0x01 graphic

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