STATE OF NEW JERSEY v. ERIC BARONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2448-05T22448-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC BARONE,

Defendant-Appellant.

______________________________________________________________

 

Submitted October 4, 2006 - Decided October 13, 2006

Before Judges Kestin and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, Accusation

No. A-05-10-839A.

Loughry and Lindsay, attorneys for appellant

(Justin T. Loughry, on the brief).

Stuart Rabner, Attorney General, attorney for

respondent (Daniel I. Bornstein, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Eric Barone, appeals from an order of the Law Division denying his motion to be admitted into the Pretrial Intervention (PTI) program over the objection of the PTI director and the County Prosecutor. Because we agree with the trail court's determination, we affirm.

After he was denied admission to the PTI program, defendant entered a negotiated plea to fourth-degree distribution of a controlled dangerous substance (marijuana), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12). Pursuant to his plea agreement, defendant was sentenced to a two-year term of probation. Appropriate monetary sanctions and suspension of driving privileges were also ordered.

On appeal, as permitted by Rule 3:28(g), defendant presents the following arguments:

POINT I

THE DENIAL OF ERIC BARONE'S PRETRIAL INTERVENTION APPLICATION PLAINLY MANIFESTS AN ABUSE OF DISCRETION; AT THE THRESHOLD, THE DIRECTOR'S ASSESSMENT RELIED UPON ERRONEOUS FACTUAL ASSUMPTIONS, INSIGNIFICANT JUVENILE EVENTS OR DISMISSALS, UNRELIABLE INFORMATION FROM AN UNDISCLOSED INFORMANT THAT DID NOT IN ANY EVENT NECESSARILY RELATE TO DEFENDANT ERIC BARONE; THE REJECTION THUS WAS BASED UPON IRRELEVANT, INAPPROPRIATE AND FACTUALLY UNSUPPORTED "FACTORS," AND ABSENT THOSE FACTORS, THE REJECTION BECOMES A CLEAR ERROR IN JUDGMENT.

POINT II

RELIANCE UPON THE CONDUCT OF OTHERS AND THE REPORTS OF INFORMANTS WHOSE INFORMATION WAS NOT SPECIFIC TO THIS DEFENDANT, WHILE IGNORING THIS DEFENDANT'S SOUND FAMILY BACKGROUND, RECORD OF VOLUNTEERISM AND PROMPT EFFORTS AT AMENDMENT, RISKS AN UNDERMINING OF THE GOALS OF PTI, AND JUSTIFIES REVERSAL.

After reviewing the record and the applicable law, we conclude that these arguments lack sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(2).

The trial court's reasons for denying defendant's motion for admission into the PTI program, included the following:

Rowan University Police received a tip that marijuana was being sold from the apartment of the defendant. They arranged for an undercover purchase to take place. The police made two buys. Then on a third entry into the apartment executed a search warrant.

. . . .

In any event, purchases were made from Mark Lewis and Jeff Hanna (phonetic), roommates of the defendant. And then several hours later a purchase was made; $40 of marijuana from the defendant. Obviously, these are all allegations. But this is what I see as the background.

After executing the search warrant, both drugs and paraphernalia were found. The PTI director's rejection letter does contain, as was agreed upon by counsel, an incorrect assumption that much of the material was found in the defendant's bedroom. In the defendant's bedroom it appeared that there were found a bong, a pipe and some other items. But that . . . most of the other, if not all of the other, items were found in another bedroom. So there was an error made in the review by the director.

. . . .

Even though there may be an error in the PTI director's letter, that error does not just by itself require the reversal of the findings. I could send it back for them to review it, but I don't find that that's necessary here.

The contraband was found in the home occupied by the defendant. There appears to be buys from other occupants, as well as buys from this defendant on one occasion. And that the sales were an ongoing thing in those premises.

The undercover officer had purchased items, according to the reports, from others. And was informed that they were available at other times. I don't have the exact language here, but it was indicated that it was available any time. "Spread the word," or something like that. Not by this defendant, but by others, occupants, of the premises. Then came back and purchased from the defendant and under the same price scheme as the others.

Based on that, . . . the finding of a continuing endeavor has been made out. And that the rejection by the Prosecutor of the defendant from the program cannot be overturned by the Court. As I indicated before, I cannot substitute my judgment for the State. I can only determine whether the rejection was a patent and gross abuse of discretion. The Court does not find that the items raised by the defense rise to such a level that the Court can make that determination.

PTI has been described as "a discretionary program diverting criminal defendants from a formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). The scope of judicial review of a decision to reject a PTI application is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). A defendant seeking to overcome rejection from PTI must prove by clear and convincing evidence "'that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion.'" Ibid. (quoting State v. Nwobu, 139 N.J. 236, 246 (1995)). In State v. Bender, the Court elaborated on the patent and gross abuse of discretion standard:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.

[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]

In this case, the record fully supports the trial court's determination that defendant's unlawful conduct was part of a continuing criminal enterprise, and defendant failed to present compelling reasons to justify his admission into the PTI program. We affirm substantially for the reasons stated by Judge Marshall in his oral decision on October 14, 2005.

 
Affirmed.

(continued)

(continued)

5

A-2448-05T2

 

October 13, 2006