State v. Leone | Second Degree Theft by Deception and Pretrial Intervention

Submitted by New Jersey Criminal Lawyer, Jeffery Hark

-2-3382 State v. Leone, App. Div. (per curiam) (13 pp.)

Reversal of Pretrial Intervention

On the State’s appeal, the appellate panel reverses the Law Division’s order admitting defendant Philip Leone to pretrial intervention (PTI) over the State’s objection. In 2004, Leone approached a longtime friend to solicit an investment in an apartment complex. The friend convinced his father, brother, and one of his other friends to invest in Leone’s venture. They each contributed $25,000. Leone misappropriated the entire $100,000, after which he continued to lead the investors to believe that the project was ongoing for seven years.

Second Degree Theft by Deception

In 2012, Leone was indicted for second-degree theft by deception. He entered into a negotiated plea agreement under which he pled guilty to the indictment as amended to third-degree theft by deception and consented to pay $100,000 in restitution. In exchange, the State agreed to recommend a non-custodial probationary sentence and to permit Leone to submit a late application for entrance into the PTI program.

Leone was a member of the bar at the time he solicited and received the investment funds, but he denied that he led the victims to believe that he was acting as their attorney with respect to the investment opportunity. He admitted that his actions amounted to theft by deception, and had paid the $100,000 restitution by the time he applied for PTI. The appellate panel concludes that the motion judge erred by interjecting herself into the process of weighing applicable factors pertinent to the PTI application, rather than determining whether the prosecutor failed to consider all relevant factors, considered inappropriate factors, or clearly erred in judgment. She also disregarded the State’s declared interest in advancing a broader social value in prosecuting this type of crime.

Judicial disagreement with a prosecutor’s reasons for rejection does not equate to “a patent and gross abuse of discretion” based on “clear and convincing evidence.”

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