NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Helen Steel appeals from her conviction, following a trial de novo in the Law Division, for shoplifting, N.J.S.A. 2C:20-11(b)(2), a disorderly persons offense. Defendant contends, among other arguments, that her conviction must be reversed (1) because she was entitled to an indictment and jury trial as she did not consent to the downgrading of her charge, (2) because she was denied due process by the rejection of her pretrial intervention (PTI) program application, and (3) because the State's inability to produce the shoplifted merchandise prejudiced her defense. Having considered these arguments in light of the record and the applicable law, we disagree with defendant and affirm.
The record reveals that defendant was shopping at the Moorestown Boscov's store on September 30, 2009. Two store security personnel, Thomas West and Melissa Mosher, observed defendant enter a fitting room with four items, but leave with only one. When Mosher approached defendant in the parking lot, defendant initially denied having the three items, but soon admitted having them, pulled them out of her shopping bag, apologized, and agreed to accompany Mosher to the loss prevention office. Mosher searched defendant's purse and discovered a pair of pants and three tops with Boscov's tags. Defendant acknowledged, "Yes, that is all from your store."
Using the store's computer system, Mosher and West confirmed that all seven items were Boscov's merchandise, verified their prices, which totaled $300 in retail value, and established that they had not been purchased. The employees then returned the seven items to their stock for sale. Subsequently, the police arrived and arrested defendant, charging her with fourth-degree shoplifting, N.J.S.A. 2C:20-11(b)(2), which was subsequently downgraded by the prosecutor to a disorderly persons offense.1
While awaiting trial, defendant attempted to file an application for PTI. The PTI program refused to accept defendant's application because PTI was not available for disorderly persons offenses. On June 14, 2010, defendant filed a motion in Superior Court requesting an order directing that her PTI application be accepted, which the court denied.
Defendant also filed numerous other pretrial motions in municipal and Superior Court seeking (1) to dismiss the charge because of the prejudice caused by the nonproduction of the stolen items; (2) to obtain a grand jury hearing and a jury trial; and (3) to suppress the evidence due to violations of defendant's Fourth Amendment rights. The judges denied all motions.
The case proceeded to trial in municipal court on January 31, 2012. After hearing the evidence, the municipal judge found defendant guilty of shoplifting, N.J.S.A. 2C:20-11(b)(2). In rendering this verdict, the judge noted that she found Mosher and West "very credible." The judge also found that the State had established the value of the items defendant shoplifted to be $300.
The judge then sentenced defendant to 115 days in jail, twenty-five days of community service, appropriate fines and fees, and a "no trespassing" order as to all Boscov's stores. The judge stayed defendant's sentence pending appeal.
Defendant appealed her municipal court conviction to the Law Division and later refiled her motion for a jury trial and indictment in Superior Court. On September 20, 2012, Judge Thomas P. Kelly held a de novo hearing on defendant's municipal appeal and motion.
In rendering his decision, Judge Kelly found "the downgrade to be a proper exercise of the discretion by the Prosecutor's Office in deciding ... what cases should be presented to the grand jury and those that should not." The judge determined that the prosecutor did not require the consent of defendant to downgrade her charge; thus, the municipal court "properly retained jurisdiction and tried the shoplifting matter as downgraded." The judge further found that defendant was not eligible for PTI. Moreover, the judge determined that the search of defendant did not violate her constitutional rights because the loss prevention personnel were not state actors and had reason to believe defendant stole from their store. As to the items defendant shoplifted, the judge concluded that defendant was not prejudiced by their nonproduction because the testimonial evidence and written inventory of the items were sufficient to prove the elements of the charge.
The judge concluded that defendant was guilty of shoplifting and denied all of her motions and applications. Judge Kelly then resentenced defendant to the same sentence imposed by the municipal judge. This appeal followed.
On appeal, defendant first argues that her conviction must be reversed because her charge was "illegally remanded" to the municipal court without her "statutorily required written consent ... under N.J.S.A. 2B:12-18." We disagree.
We begin with a review of the legal principles that guide our analysis. On an appeal such as this one, our role is to consider the action taken in the Law Division, not the action of the municipal court. State v. Adubato, 420 N.J.Super. 167, 175-76 (App. Div. 2011) (citing State v. Oliveri, 336 N.J.Super. 244, 251 (App. Div. 2001)), certif. denied, 209 N.J. 430 (2012). The Law Division, on the other hand, must consider the evidence de novo but give due regard to the municipal court judge's determinations on credibility findings in making its decision. Id. at 176 (citing State v. Johnson, 42 N.J. 146, 157 (1964)). We are ordinarily limited to determining whether the Law Division's findings were supported by sufficient credible evidence on the record. Ibid. (citing Johnson, supra, 42 N.J. at 162). However, where the issues turn on purely legal issues, our review is plenary. Ibid.
After the filing of a complaint alleging an indictable offense, "[t]he prosecutor then determines whether the charges merit presentation to the grand jury or, alternatively, outright dismissal or downgrade to the municipal court." In re Grand Jury Appearance Request by Loigman, 183 N.J. 133, 144 (2005). Prosecutors "retain[] broad discretion as to whom to prosecute and what charge to bring." State v. Medina, 349 N.J.Super. 108, 127 (App. Div.), certif. denied, 174 N.J. 193 (2002). "`[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.'" Id. at 127-28 (alteration in original) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L. Ed. 2d 604, 611 (1978)). We are satisfied that the prosecutor did not exceed his discretion in downgrading defendant's charge.
Municipal courts have jurisdiction over "[d]isorderly persons offenses, petty disorderly persons offenses and other non-indictable offenses except where exclusive jurisdiction is given to the Superior Court[.]" N.J.S.A. 2B:12-17(c); see also R. 7.1. "Municipal courts can also adjudicate certain fourth-degree offenses and offenses for which the maximum sentence does not exceed one year if the defendant waives indictment and trial by jury and the county prosecutor consents." State v. McCabe, 201 N.J. 34, 41-42 (2010) (citing N.J.S.A. 2B:12-18).
Contrary to defendant's claim, N.J.S.A. 2B:12-18 does not apply to defendant's charge. Had defendant's charge remained a fourth-degree violation, the statute would have required a written waiver of her right to indictment and trial by jury for the case to be heard in municipal court. As her case was downgraded to a disorderly persons offense, it was plainly outside the purview of N.J.S.A. 2B:12-18. Since the prosecutor had the discretion to downgrade defendant's offense, see Loigman, supra, 183 N.J. at 144, the municipal court had jurisdiction over her disorderly persons case without needing defendant's consent. See N.J.S.A. 2B:12-17(c); R. 7.1.
Next, defendant contends that Rule 3:28 permits defendant "to file an application for PTI directly from the municipal court when the charge is criminal and penal[.]" We disagree.
It is well-settled that "nonindictable offenses are not encompassed within the meaning of the term `crime' as used in R. 3:28 or the Guidelines, and hence a county is free to exclude from its [PTI] program individuals accused of disorderly persons and motor vehicle infractions." State v. Bender, 80 N.J. 84, 89 (1979) (citing State v. Senno, 79 N.J. 216, 223-24 (1979); see also State v. Hammond, 118 N.J. 306, 311 (1990); State v. DiCosmo, 188 N.J.Super. 298, 299-300 (Law Div. 1982). "[T]he exclusion of disorderly and other petty offenses from a PTI program clearly rests upon a rational basis."2 Senno, supra, 79 N.J. at 229.
Moreover, references to crimes throughout the PTI statute demonstrate that the program is primarily intended to cover those persons who are accused of "crimes." See N.J.S.A. 2C:43-12(a)(2) ("criminal sanctions"); N.J.S.A. 2C:43-12(a)(4) ("criminal calendars"); N.J.S.A. 2C:43-12(e) ("criminal complaint"); N.J.S.A. 2C:43-12(e)(5), (6), (8), (10), (11), (14), (15) (referring to "applicant's crime," "crime," or "criminal act"). Similarly, Rule 3:28(b) references a "penal or criminal offense" in connection with a defendant's admission to PTI. See also R. 3:28, Guideline 1 ("criminal sanctions," "criminal calendars"); R. 3:28, Guideline 2 ("Any defendant accused of a crime shall be eligible for admission into a PTI program.").
Consequently, as a person charged with a disorderly persons offense, defendant was not entitled to consideration for admission to PTI. Burlington County could opt to extend PTI to such nonindictable offenses, but is not required to do so. The county did not have PTI in place for defendants facing nonindictable offenses in municipal court. Thus, the rejection of defendant's PTI application did not deny her due process rights.
We also find defendant's contention that her disorderly persons offense should constitute an exception to the exclusion of disorderly persons offenses from PTI because she faced mandatory minimum jail time to be without merit. After defendant's fourth-degree shoplifting charge was downgraded to a disorderly persons offense, her sentence could not exceed six months. N.J.S.A. 2C:43-8. As a third-time shoplifting offender, defendant faced "a minimum term of imprisonment of not less than 90 days." N.J.S.A. 2C:20-11(c). Since defendant faced the same maximum sentence as any other disorderly persons offense, her penal exposure was similar and did not warrant an exception. See Senno, supra, 79 N.J. at 223.
Defendant's remaining arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). Suffice it to say, the record contains no evidence that the nonproduction of the stolen merchandise in any way prejudiced defendant's case or violated her due process rights. Two witnesses testified regarding the stolen merchandise, its recovery, and its retail cost, and the inventory log, compiled the day of the incident, was also admitted into evidence. Moreover, as defendant was charged with shoplifting items under $200 in value, N.J.S.A. 2C:20-11(c)(4), proving that the clothing was worth less than the $300 alleged by the State would not have altered the outcome.
Affirmed.
