STATE OF NEW JERSEY v. BROOKS GRIFFIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0883-04T50883-04T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BROOKS GRIFFIN,

Defendant-Respondent.

_____________________________________

 

Submitted September 28, 2005 - Decided

Before Wefing and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

No. 04-06-1328-I.

Jeffrey S. Blitz, Atlantic County

Prosecutor, attorney for appellant

(John H. Flammer, III, Assistant

Prosecutor, of counsel and on the brief).

Goldenberg, Mackler, Sayegh, Mintz,

Pfeffer, Bonchi & Gill, attorneys for

respondent (James P. Grimley, of counsel

and on the brief).

PER CURIAM

Defendant was indicted for unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Defendant, who was then eighteen years old and a college student, applied for admission to Atlantic County's Pretrial Intervention Program ("PTI"). His initial application was preliminarily denied, and his attorney submitted additional supporting material. Despite these additional submissions, defendant's application was again denied, both by the program director and then by the county prosecutor's office. Defendant filed an appeal to the Law Division, which, after reviewing the record and hearing argument, entered an order permitting defendant to enroll in PTI. The State has appealed from that order. R. 3:28(f). After reviewing the record in light of the contentions advanced on appeal, we remand for further proceedings.

The record in this matter is sparse. On the evening of May 15, 2004, the Atlantic City Police Department received an unidentified 911 call from 129 North Connecticut Avenue, and a patrol car was dispatched to respond. When it arrived at the scene, defendant approached and told the officer in the patrol car that he had been driving in the area when a van suddenly pulled in front of him and a man with a gun jumped out of the van and began firing at his car. Defendant said he put his car in reverse to leave the area. He said the van pursued him and eventually the two cars collided. Defendant said he was then able to get away.

A second officer of the Atlantic City Police Department came upon the scene and asked defendant to repeat what had occurred. This time, defendant said there had been a female passenger in his car who fled as soon as the shooting started.

One of the officers patted defendant down and found a gun in his pants pocket; it had one round of ammunition in the chamber and three in the magazine. During his interview for admission to PTI, defendant said he bought the gun for target practice, that it had been in the glove compartment of his car and that he took it out and put it in his pocket when the driver of the other vehicle began to shoot at him. There is no indication in the record before us that the gun had recently been fired.

The officers conducted an investigation and located two witnesses. One, named Isaac Dannen, told the police he had been driving nearby and had been flagged down by a woman who said her name was Trina. She asked Dannen to drive her home, saying she was running because "her baby's father was pursuing her and that he was abusive." Dannen said he drove the woman home, as she had asked.

The police also spoke to Gregory Bird, a limousine driver. Bird told the police that he had seen a silver-colored car with a broken rear axle come to a sudden stop. A man got out of the car and ran away. A woman also got out of the car but according to Bird, she got into a car that was passing by and hid in the rear seat as it drove off.

In the course of their investigation, the officers noted that there were no bullet holes in defendant's car. There was, however, damage to the driver's side rear panel. The record does not disclose whether defendant's car was silver-colored.

As we noted earlier, defendant was eighteen years old at the time. He was enrolled at Kean University, studying criminal justice. According to the argument before the trial court, he was maintaining a 3.0 grade point average. He held a part-time job as a security guard and helped to support his family, who lived in Atlantic City. His mother worked as a cook at one of the casino hotels, and his father was a disabled veteran. His sister had enrolled in the Navy, and defendant helped to care for her daughter. Defendant's only prior involvement with the criminal justice system had occurred some two years earlier, when, as a juvenile, he was charged with simple assault; this had been resolved by way of a deferred disposition. N.J.S.A. 2A:4A-43(b)(1).

The rejection notice defendant received from the PTI program stated as follows.

We concede that based on his arrest history-or lack thereof-and the other noteworthy aspects of his background and his future goals, the defendant would probably be amenable to our program of rehabilitation. In fact, if the offense could be set aside, the defendant would be a prototypical candidate for PTI. Unfortunately, though, the offense and the offense circumstances must be considered in arriving at a diversion decision. . . . [T]he offense & surrounding circumstances override the favorable rehabilitative factors that seem to exist and under this circumstance, the favorable factors are felt to take a backseat in this case. . . . Nonetheless . . . because we feel that this defendant has amenability and because great deference is to be given to the Prosecutor as concerns nature of offense issues, if the Prosecutor's office feels that PTI has overstated the nature of the offense in this case and it is not a bar to enrollment . . . we would gladly recommend in favor of this defendant's enrollment . . . .

Despite this invitation from PTI, the Prosecutor's Office declined to recommend defendant's enrollment.

In argument before the trial court, the following colloquy occurred.

THE COURT: I think that [assistant prosecutor] will concede, I think, but I'll ask him that, but for the fact that there was a gun involved that this defendant, otherwise, would be an appropriate and excellent candidate for PTI, do you concede that?

[PROSECUTOR] I will concede that.

THE COURT: Based on his youth, his record or lack thereof and him as a quote "whole person," being in college, doing relatively well and especially his lack of a prior record.

[PROSECUTOR] If there wasn't a loaded handgun on his person in a domestic violence context, yes, I would say he would be a perfect candidate.

We are troubled, as was the trial court by the prosecutor's continued use of the theme throughout the balance of the argument that defendant had in some manner been involved in an incident of domestic violence. We are particularly troubled in light of the concession that the prosecutor would have supported defendant's application for admission to PTI if he had not been involved in an incident of domestic violence.

There is no doubt that weapons within the context of an allegation of domestic violence pose a particular risk. State v. Warriner, 322 N.J. Super. 401 (App. Div. 1999) (affirming the rejection of defendant's application for PTI; defendant was charged with illegal possession of an assault weapon after the police seized the weapon while responding to a 911 call in which his wife alleged he had pointed a shotgun at her and "racked" it.) The record, however, at least as it has been presented to us, does not, in our judgment, fairly support a characterization that defendant was involved in an incident of domestic violence.

There is no indication that the officers ever attempted to locate Trina, the woman who sought a ride from Isaac Dannen. There is absolutely no evidence that she was fleeing from defendant. Rather, as the trial court noted, it is reasonably inferable from this record that some unidentified individual objected to Trina being a passenger in defendant's car and

expressed that objection in an assaultive manner. Nor is there any evidence in this record that would justify an inference that defendant knew that having this woman in his car could trigger aggression on the part of someone else. We are unable to perceive why an individual who perhaps unwittingly became a witness to a domestic violence incident between others should in consequence be denied admission to PTI.

PTI is an alternative procedure to the traditional process of prosecuting criminal defendants. It is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior. PTI is intended to augment the criminal justice system when prosecution would be ineffective, counterproductive or unnecessary.

[State v. Nwobu, 139 N.J. 236, 240-41 (1995).]

The Supreme Court has repeatedly recognized the sensitive nature of the decision whether to permit an individual to benefit from a diversion from criminal prosecution, a decision which "implicates both judicial and prosecutorial functions." State v. DeMarco, 107 N.J. 562, 566 (1987). Although judicial review of a prosecutor's decision in this regard is necessary, it is strictly limited. State v. Baynes, 148 N.J. 434, 443 (1997) (striking down a policy of the county prosecutor to refuse admission into PTI of an individual charged with possession of a controlled dangerous substance within one thousand feet of a school).

A prosecutor's decision to deny an applicant admission to PTI "is to be afforded great deference. In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)).

A defendant challenging a prosecutor's refusal to admit him to PTI "must clearly and convincingly establish that the prosecutor's refusal to sanction admission . . . was based on a patent and gross abuse of his discretion . . . ." Ibid. A defendant may demonstrate such an abuse of discretion in one of three ways: demonstrating that the prosecutor failed to consider all relevant factors, that the decision was based upon irrelevant or inappropriate factors, or represented a clear error in judgment. State v. Nwobu, supra, 139 N.J. at 247.

In our review of the record, we see no indication that the prosecutor considered the possibility that defendant was no more than an observer to this incident.

Because of the deference to be afforded to the prosecutor, we have concluded that the matter should be remanded to permit the prosecutor's office to place upon the record any other evidence it may have developed which would tend in reason to support its view that this defendant was involved in an incident of domestic violence. Absent such evidence, we are satisfied the trial court correctly ordered defendant's admission into PTI. The proceedings on remand shall be completed within sixty days.

Remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

 

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A-0883-04T5

October 24, 2005