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Susan Zafarlotfi must now either go to trial or try to strike a plea deal with authorities.
A Superior Court judge in Hackensack admitted Zafarlotfi into the special program over Molinelli’s objections after a Bergen County grand jury indicted her on theft charges in May 2011.
Molinelli took his case to the state Court of Appeals, citing several reasons why he believed she didn’t qualify.
In a decision issued yesterday, the higher court agreed that the judge improperly “substituted his judgment for that of the prosecutor,” and that Molinelli’s decision to veto Zafarlotfi ‘s application “was based upon a thorough consideration of all appropriate factors and did not constitute a gross and patent abuse of discretion.”
Zafarlotfi, of Cedar Grove, began working as an office manager for Hackensack physician Hormoz Ashtyani in 1982, court papers show. She was responsible for handling the business aspects of his practice, which specialized in the treatment of sleep disorders.
In 1998, after earning her doctorate and completing a fellowship in sleep disorders — which qualified her to provide clinical services as a sleep therapist – Zafarlotfi took a full-time job as clinical director of HUMC’s Institute for Sleep and Wake Disorders, the appeals decision says. They also say she created a limited liability company “through which she provided therapy and other services to Dr. Ashtyani’s patients.”
Despite the new circumstances, Zafarlotfi – who has frequently been featured and quoted in publications throughout the country – continued to work 15 to 20 hours a week for Ashtyani, managing his accounts, employees, bookkeepers, medical billers, and other office staff, the decision says.
This, it says, gave her access to his business checking account and several of his business credit cards.
Ashtyani in August 2010 accused Zafarlotfi of using his business credit cards and forging his name on checks to systematically steal from him over the course of several years. He filed a criminal complaint and sued her in civil court, the appeals judges said.
Zafarlotfi denied the theft, “claiming that Dr. Ashtyani had authorized payments to her and on her behalf in compensation for her services,” according to their decision.
A grand jury, in turn, returned a single-count indictment charging her with third-degree theft.
Zafarlotfi applied for PTI, which allows applicants to avoid jail time if they meet certain conditions. Over the objections of Ashtyani, the program director gave her the OK – provided that she repay $75,000 of the $297,000 that the doctor accused her of taking from him, among other requirements.
One of the objectives of PTI, he noted, is to “provide an alternative to prosecution for defendants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct,” court papers show.
Were she convicted at trial, he continued, Zafarlotfi would “in all likelihood … lose her $150,000 a year job” at HUMC, “thus making it more difficult if not impossible to fulfill her restitution obligation to the victim.”
Molinelli strongly opposed the move. In a lengthy letter dated March 23, 2012, the prosecutor noted that Zafarlotfi agreed to pay only $75,000 – and not the full $297,000 — in restitution.
Molinelli said that Zafarlotfi “abused a position of trust within a medical practice,” stole the money over a five-year period involving “literally hundreds of unauthorized credit card transactions,” and used her position in the practice “to conceal and perpetuate her crimes.”
“This cannot be characterized as a minor transgression of law or a momentary lapse of judgment,” the prosecutor said. “Instead, [her] crime evidenced a longer-term pattern of deliberate theft of monies not owed to her to support her high standard of living.
“Furthermore, her crimes breached the highest form of trust [in] violation of professional ethics.”
Zafarlotfi appealed the prosecutor’s decision to a judge in Hackensack, who granted her admission to PTI. He concluded that “the paramount interest of the victim . . . to get back his financial loss” would be better served through pre-trial intervention, among other findings.
For one thing, the judge said, she was a 57-year-old first time offender charged with a third-degree non-violent crime. He also said that “supervisory treatment, including psychological evaluation[s],” would help prevent such a crime from occurring again. “[A]ny harm to society, by abandoning criminal prosecution, would not outweigh the benefits to society from channeling her into supervisory treatment,” the judge wrote.
On top of that, he called $75,000 “a reasonable amount, as a condition of entry into PTI” that “should not be reduced in any way, even if there is a civil judgment in [her] favor.”
The appeals judges backed Molinelli, however, emphasizing that prosecutors are permitted “wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial.”
A court can overturn a prosecutor’s PTI decision only in the “most egregious examples of injustice and unfairness’,” the state Appellate Division judges said. In those cases, a defendant must “clearly and convincingly establish that the prosecutor’s refusal . . . was based on a patent and gross abuse of his discretion,” they added.
“We are convinced from our review of the record that the prosecutor considered, weighed, and balanced all of the requisite factors, including those personal to defendant as well as the facts and circumstances of the offense,” the judges wrote. Molinelli “not only gave significant emphasis to the circumstances of the offense, including the deliberate pattern of theft from an employer who placed much trust in defendant’s honesty, but also considered defendant’s individual characteristics.”
The judge wrongly “predicated his decision upon his own assessment of the PTI factors, rather than determining whether the prosecutor failed to consider all relevant factors, considered inappropriate factors or clearly erred in judgment,” the higher court added.
“He compounded his error by then opining that providing some restitution to the victim outweighed the State’s declared interest in advancing a broader social value in prosecuting this type of crime.”
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