PER CURIAM.
Defendant James Thomas appeals from: the June 18, 2008 order, upholding the recommendation against defendant's entry into the Somerset County Pretrial Intervention Program (PTI); and his subsequent conviction following a jury trial. We reverse the conviction based on an erroneous evidentiary ruling.
These are the salient facts. On March 6, 2007, defendant brought his 1994 Buick Park Avenue Sedan to Green Brook Pontiac Buick GMC Hummer (Green Brook) to be serviced. The next day, defendant learned that additional repairs were needed. Two days later, he picked up the car and learned that the cost of the service was $2,625.61. He issued a check from his Commerce Bank account for that amount. At the time, he knew that there were insufficient funds in his Commerce Bank account to cover the check. However, he alleges that he intended to transfer funds from his other accounts to cover the check. Defendant estimated that on that day, the combined balance of his other accounts was $5,400.
On Saturday, March 10, 2007, defendant's car broke down on the highway and he placed a stop payment on the check.
Kathleen Lasheras, Green Brook's comptroller, testified that defendant's check was declined due to insufficient funds. Following Green Brook's practice, Lasheras redeposited defendant's check on or about March 17, 2009. She then received a notification that a stop payment had been placed on the check.
Ten days later, Lasheras wrote to defendant informing him that Green Brook had not been able to negotiate the check after two attempts and that he had ten days from the date of the letter to make restitution. The letter to defendant was sent via certified mail. It was returned unclaimed three weeks later. Lasheras contacted the Green Brook Township Police Department.
Detective Christopher Dill investigated the matter, subpoenaed Commerce Bank records, and interviewed defendant. Subsequently, defendant was arrested and charged with third degree issuing a bad check,
Defendant applied for admission into the PTI program. The program director recommended that admission be denied because the "the crime or crimes defendant is charged with constitutes a part of a continuing pattern of anti-social behavior or the defendant has a record of criminal and penal violations and presents a substantial danger to others." The County Prosecutor followed the recommendation of the program director. The rejection referred to defendant's prior burglary convictions from October 1980 and March 1981, both from Illinois.
Defendant argued that he had only one burglary conviction, which occurred on October 6, 1980, and for which he was sentenced to three years incarceration. He disputed a March 26, 1981 burglary conviction. The State disputed defendant's assertion and proffered evidence that defendant received a two-year probationary sentence for the 1980 burglary conviction and a three year term of incarceration for the March 26, 1981 burglary conviction.
The judge upheld the prosecutor's denial, finding that there were "rational grounds" for the rejection. He reasoned that whether defendant has one or two burglary convictions is irrelevant because a single conviction provided a sufficient basis to deny entry into PTI.
Defendant filed a civil action against Green Brook. Prior to the criminal trial, the State moved in limine to bar defendant from introducing evidence of the action against Green Brook. The judge granted the State's motion.
Defendant was tried and convicted of third-degree issuing a bad check,
On appeal, defendant contends:
We disagree.
Admission into PTI requires a positive recommendation from the PTI director and the consent of the County Prosecutor.
Because the prosecutorial function is reserved to the executive branch, once a prosecutor, following the program director's recommendation against admission, determines not to consent to a defendant's application to a diversionary program, that decision is to be afforded enhanced or extra deference.
A defendant attempting to overcome a prosecutorial veto must "`clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion' before a court can suspend criminal proceedings under
Here, the judge followed these principles. The information obtained as part of the PTI evaluation of defendant supports the program director's conclusion, which the Prosecutor accepted, that defendant was not an appropriate candidate for the program.
Defendant also contends:
We agree.
The elements of the offense of issuing a bad check are: (a) issuing a check "for the payment of money, knowing that it will not be honored by the drawee," and (b) "payment was refused by the drawee for lack of funds, . . . after a deposit by the payee into a bank for collection or after presentation to the drawee within 46 days after issue, and the issuer failed to make good within 10 days after receiving notice of that refusal or after notice has been sent to the issuer's last known address."
Here, long before Commerce Bank refused the check, defendant issued a stop payment for the check he had issued to Green Brook. There are no criminal penalties for issuing a stop payment against a check issued "for the payment of money." There is no provision of the Criminal Code that makes ordering a stop payment for a check a crime. Undoubtedly, there are civil consequences, but no criminal sanctions. Criminal statutes must be strictly construed.
Therefore, defendant's prosecution must be based on the elements set by
The State argues that the stop payment order occurred after the check was refused. We reject this argument. It is for the jury to decide whether the stop payment defense was a sham or legitimate. Therefore, defendant was unduly prejudiced by not being allowed to present this defense to the jury.
We are mindful that,
Affirmed in part, reversed in part.