STATE OF NEW JERSEY v. H.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4039-05T24039-05T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

H.A.,

Defendant-Respondent.

__________________________________

 

Submitted October 23, 2006 - Decided December 4, 2006

Before Judges S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 904-06-05.

Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant (Mark S. Hanna, Assistant Prosecutor, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

The State appeals from an order of March 27, 2006, requiring that defendant H.A. be admitted into a pretrial intervention program (PTI), as provided by N.J.S.A. 2C:43-12 and Rule 3:28. The sentencing judge found that the Hudson County Prosecutor had failed to properly consider and weigh all of the statutory factors bearing upon admission to PTI because the prosecutor would not agree to PTI for any person who had violated Megan's Law, N.J.S.A. 2C:7-2. We affirm.

I.

When defendant was eleven years old, he was adjudicated delinquent in connection with a September 1, 1997, act of fellatio that he induced or compelled a six-year-old male to perform on defendant's brother. Defendant pled guilty to second-degree sexual assault and endangering the welfare of a minor; he was sentenced to probation for two years and made subject to the registration requirements of Megan's Law, N.J.S.A. 2C:7-2(c), (d). Because his mother failed to take him to St. Mary's Sex Offender Program, a notice of violation of probation was filed, but later withdrawn when the mother met her parental obligation to transport defendant to the program. Defendant has no other juvenile record.

Although defendant was always in special education classes, he successfully completed grade school and attended high school. In 2002 when he was about sixteen, defendant went to live with his older sister because of problems in his mother's home. He registered with his local police department, giving his address as 224 N. Street. He re-registered in 2003 and 2004. The June 22, 2004, "Megan's Law Registration Interview Form" lists his address as either "224" or "724" N. Street. After re-registering in June 2004, defendant and his sister moved to 300 F. Street. Defendant advised his high school of his new address, but failed to notify his local police department that he had moved, as he was required to do pursuant to N.J.S.A. 2C:7-2(d).

When defendant was nineteen years old and in his last year of high school, he went to his local police department on March 22, 2005, to re-register. He was told that it was not yet time for him to re-register, although he was apparently not told when to come back. Thinking that he had registered on May 22, 2003, and was required to register on or about the same day each year, he intended to return in May 2005 to comply with his registration requirements under N.J.S.A. 2C:7-2(c). However, defendant's registration date was apparently April 26, 2005.

On April 27, 2005, a police officer in defendant's town investigated defendant's address. He interpreted the 2004 interview form as indicating that defendant resided at 724 N. Street and went to that address to locate defendant. There was no residence at that address. The officer then went to the defendant's high school where officials supplied defendant's correct address. Defendant was subsequently arrested and charged with failing to re-register in violation of N.J.S.A. 2C:7-2(e) (count one) and failing to register a change of address in violation of N.J.S.A. 2C:7-2(d) (count two).

At a status conference on October 3, 2005, defense counsel advised the judge that she understood from an assistant prosecutor "that the State has a blanket position against agreeing to PTI for defendants who are charged with Megan's Law notice and registration violations." The assistant prosecutor then advised the court:

I spoke to my supervisor earlier on regarding applications for PTI for defendants charged with failure to register and other Megan's Law related matters. And we both spoke to our first assistant prosecutor who stated that there's a policy . . . to object to any PTI applications regarding defendants charged with Megan's Law failure[s] . . . .

The court granted defendant leave to apply late for PTI so that the prosecutor would make a determination on the PTI application.

On October 24, 2005, the Criminal Division Manager advised the judge that his office did not recommend enrollment in PTI. He reviewed the seventeen statutory factors to be considered in determining a PTI application. As to factor one, he described the nature of the offense, defendant's failure to re-register and defendant's failure to notify authorities of his relocation. As to factor two, he described the facts of the case, stating that defendant had given a false address when he last registered as a sex offender, i.e., 724 N. Street, and that the investigating officer had to determine the correct address from defendant's high school, i.e., 300 F. Street. As to factor three, motivation and age of the defendant, the Criminal Division Manager stated that defendant was nineteen years old, that after seven years he was unable to comply with the conditions of supervision, and that defendant had stated that he was in his last year of high school and forgot what date he had to be back to re-register. He concluded that defendant "ha[d] not taken . . . responsibility for his noncompliance of Megan's Law." As to factor five, he reported that there were no personal problems or character traits which related to the crime. Finally, as to factor seventeen, harm to society by abandoning prosecution, the Criminal Division Manager stated: "The defendant is a registered sex offender for life. He failed to comply with the Megan's Law requirements knowingly. He stated that he was 'too involved with graduation.' However, that is not an excuse for his noncompliance. Therefore, the defendant is not a candidate for the PTI [program]." No other factors were considered.

On October 26, 2005, the Criminal Division Manager advised the Office of the Hudson County Prosecutor that he had denied defendant's application, and on October 31, 2005, the First Assistant Prosecutor advised him that the Prosecutor's Office concurred in the decision.

On November 3, 2005, defendant pled guilty to the first count, the second count was dismissed, and defendant was given an opportunity to appeal the rejection of his PTI application. An appeal motion was filed on November 21, 2005. Defendant contended that the blanket denial of PTI for Megan's Law offenders violated State v. Baynes, 148 N.J. 434 (1997).

In the State's brief the assistant prosecutor argued that PTI was limited to persons who had no previous convictions of any criminal offense, citing N.J.S.A. 2C:43-12. She argued that defendant was adjudicated delinquent of sexual assault in 1996, and, thus, had a prior offense. Defendant was also charged with a Megan's Law violation, so she argued that factors one and two weighed heavily against admission into PTI.

The assistant prosecutor's discussion of the remaining factors focused almost exclusively on the nature of defendant's Megan's Law violation and his juvenile delinquency. She stated that the other factors were not applicable and concluded:

It would certainly undermine the function of Megan's Law and send a message to registrants that you can get a 'second bite at the apple' if you 'forget' to register. The violation of Megan's Law is a serious offense and should be treated as such in order to preserve the principles behind its [] creation.

On January 27, 2006, when the motion was scheduled for argument, the judge observed that what she had was "basically a blanket response from the State that regardless of who you are, or what you did, or how old you were when you were an adjudicated delinquent, this is going to be our response." The court continued the motion and instructed both parties to "individualize" their presentations to discuss this particular defendant so that the judge could determine whether there was a reason to deny PTI. She cautioned the parties that case law did not permit "the State [to] adopt a per se rule automatically excluding all people on Megan's Law from pre-trial intervention."

Additional submittals were provided to the judge and the motion was argued on March 27, 2006. The judge made the following findings of fact:

[T]he State's argument really seems to be a tautological argument. He can't go into PTI because he's supposed to register and he didn't register, that's why he has the offense for which he is seeking consideration for PTI.

In a subsequent brief, the State focuses on the nature of the underlying offense from when he was 11 years old. And while I can't deny that that is a significant offense, it appears to me that from looking at the file also that he might have actually been charged with endangering the welfare of a child, which I don't know how anyone . . . who's 11 years old can be charged with that offense. So I think there were a lot of problems with that.

The State can't focus on any other applicant who would be permitted into PTI under circumstances such as this where . . . anyone who has a failure to register offense charged against him as an adult is going to have an underlying sex offense . . . . [T]he nature and seriousness of the offense is always present. So therefore, if you reject someone for the nature and serious-ness of the underlying offense, there is a blanket prohibition, as stated by Ms. De Los Reyes back in October, against permitting anyone who's charged with registering as a sex offender from being admitted into PTI.

And as we know under State vs. Baynes, such blanket prohibitions are abuse of the prosecutor's discretion. Every other factor that the State has tried to argue subsequent really seems to be a boot strapping and an attempt to justify what was initially a blanket rejection because of the nature of this particular fourth degree offense.

In . . . refusing to permit [defendant] into PTI, the State has failed to consider that the State's interest is adequately protected because he's still under the requirements of Megan's Law. He still has the registration and notification requirements that he has had since he was 11 years old. What he will not have is an adult conviction for a fourth degree offense for someone who otherwise has done nothing wrong since he was a child. And I consider 11 years old to be a small child.

He has indicated his desire to work, to go to college, to make something of himself and I don't feel that it is fair for him to be saddled with a criminal conviction. Moreover, I feel that the State has abused [its] discretion, what they're doing is basically a blanket prohibition.

. . . .

I find something of a negligent, failure to register at the appropriate time, but the focus of his rejection has been on willfully giving a wrong address, which I find didn't happen. And I don't think either the PTI program . . . or the prosecutor's office have adequately address-ed that the premise of his denial has been belied.

So while it is well settled that enhanced deference is afforded to a prosecutor's decision in respect to a PTI application and that a defendant must prove by clear and convincing evidence that a prosecutor's decision was a patent and gross abuse of discretion, what the defendant must show is that the decision was either not premised upon a consideration of all the relevant factors or was based upon consideration of irrelevant or inappropriate factors or amounted to a clear error in judgment.

What I find here is that there was an incorrect factor considered . . . that was the major . . . focus after the State realized that it would be impermissible under Baynes to have a blanket rejection of everyone who is charged with a failure to register.

I'm not really certain who would be permitted into the PTI for a failure to register if not Mr. Ayala. The State has not been able to show me . . . what would be the circumstances where someone would be permitted into PTI for a failure to register. So this amounts to what Ms. De Los Reyes told me there was, a blanket rejection of anyone who has been charged with a fourth degree failure to register.

So blanket rejections are not appropriate, it did not afford this defendant an appropriate consideration of him and his application. Moreover, what was considered was an erroneous factor [i.e., the assumption that defendant gave a wrong address], which the State has refused to reconsider . . . .

So I think this is an abuse of discretion. I'm going to admit Mr. Ayala into the PTI program. I'm going to order . . . 20 hours of community service. And the fines and penalties apply. He can pay them at a rate of $20 per month.

II.

The trial judge's conclusion that the prosecutor did not base this decision on an appropriate factor is a question of law. State v. Nwobu, 139 N.J. 236, 247 (1995). Thus, we review the judge's decision de novo. Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). See also Stricklen v. Ferruggia, 379 N.J. Super. 296, 300-01 (App. Div. 2005); State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004); State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000). We apply the same standard of review that the trial judge was required to apply to the prosecutor's determination. Cf. Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

The standard of review applicable to the prosecutor's determination of admission into PTI is highly deferential:

Throughout the [PTI] program's history, the courts have remained sensitive to the fact that diversion is a quintessentially prosecutorial function. It is fairly understood that the prosecutor has great discretion in selecting whom to prosecute and whom to divert to an alternative program, such as PTI.

The prosecutor's discretion is not unbridled, however. If a defendant can "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion," a reviewing court may overrule the prosecutor and order a defendant admitted to PTI. A "patent and gross abuse of discretion" is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." In State v. Bender, 80 N.J. 84 (1979), we 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.

[Id. at [93] (citation omitted).]

[State v. Wallace, 146 N.J. 576, 582-83 (1996) (quoting State v. Leonardis, 73 N.J. 360, 382 (1977), State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)) (citations omitted).]

The defendant has the burden to prove by clear and convincing evidence that the prosecutor's decision amounted to a "patent and gross abuse of . . . discretion." Baynes, supra, 148 N.J. at 444; see also Bender, supra, 80 N.J. at 93. In this case, the Prosecutor's decision falls under categories (a) (failure to consider all relevant factors) and (b) (consideration of irrelevant or inappropriate factors).

III.

The Prosecutor on appeal contends that he rejected defendant based on the nature of the offense (factor one), the defendant's character traits (factor five), the needs and interests of society (factor seven), and the prior adjudication of delinquency, as well as the subsequent complaint alleging a violation of probation when defendant was twelve (factor nine).

"PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)) (emphasis added). In evaluating an application for admission to PTI, the Criminal Division Manager and the Prosecutor must consider all of the factors specified in both the statute and our Rules of Court. N.J.S.A. 2C:43-12(e); R. 3:28, Guideline 3 (2004). Furthermore, "there are no explicit per se rules excluding offenders from PTI eligibility." State v. Brooks, 175 N.J. 215, 224 (2002).

As to factor one, the Prosecutor found that the nature of the offense militated against diversion because defendant knew of his obligation to re-register in 2005, and had no excuse to justify the fact that he forgot to do so. The Prosecutor concluded that defendant did not appreciate the gravity of his re-registration obligation, and, thus, factor one supported rejecting defendant from PTI.

As to factor one,

[T]he nature of the offense is a factor to be considered in reviewing the application. If the crime was (1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another per-son; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected.

[R. 3:28, Guideline 3(i).]

When an offense falls within one of the enumerated categories, the defendant has the burden to present "any facts or materials demonstrating the defendant's amenability to the rehabilitative process, showing compelling reasons justifying the defendant's admission, and establishing that a decision against enrollment would be arbitrary and unreasonable." R. 3:28, Guideline 2.

Here, the nature of the offense did not fall within any of the types of crimes for which "the application should generally be rejected." R. 3:28, Guideline 3(i). It was neither part of organized criminal activity nor a continuing criminal business or enterprise. It certainly did not involve any violence, threat of violence, or any breach of the public trust. Thus, there was nothing about the nature of the offense that militated against diversion into PTI. The fact that defendant forgot to timely re-register when he was aware of his obligation to do so is not relevant to a consideration of factor one. The approach taken by the Prosecutor was a thinly disguised ex post facto justification for a per se disqualification that was and remains contrary to the mandate of Baynes, supra, 148 N.J. at 445 ("[W]hen a defendant demonstrates that a prosecutor has relied on . . . a [per se] rule, the presumption that the prosecutor has considered all relevant facts is overcome."). Denying admission to PTI based on factor one was a patent and gross abuse of prosecutorial discretion.

As to factor five, the Prosecutor explained that this factor did not support diversion because defendant had a poor record of attendance for court dates scheduled to address the charges of Megan's Law violations. On November 3, 2005, defendant did not arrive in court until the afternoon, and forgot to go to court on the date set for sentencing on January 20, 2006. He did not appear on the rescheduled sentencing date until 4:30 p.m. The Prosecutor concluded from this that defendant's "lackadaisical attitude" made it clear that he would not be deterred from future criminal conduct.

The Prosecutor miscomprehended factor five.

The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment[.]

[N.J.S.A. 2C:43-12(e)(5).]

The Prosecutor did not address the services available within the criminal justice system, the services available through supervisory treatment, and the probability that defendant's forgetfulness can be controlled by proper treatment. We are not aware of any services in the criminal justice system for the character trait of forgetfulness on the part of a young man with unknown learning disabilities. It would seem that such a character trait is actually one that can be addressed more effectively through supervisory treatment than in a penal institution. There are skills that can be taught to a learning disabled person to improve their ability to be organized and to avoid missing appointments. Thus, the Prosecutor's belated partial consideration of factor five did not support rejection from PTI and was a patent and gross abuse of discretion.

Next, the Prosecutor relied on factor seven, the needs and interests of society, to support his refusal to divert defendant to PTI. Certainly, the community in which a registered sex offender lives generally has an interest in being informed of the location of such a person and the police have an obligation to execute their community notification functions. However, the decision on a PTI application is "'primarily individualistic in nature.'" Nwobu, supra, 139 N.J. at 255 (quoting Sutton, supra, 80 N.J. at 119). Here, the Prosecutor did not relate the interests of society to defendant as an individual.

Defendant was only eleven years old when he committed the act that resulted in the adjudication of delinquency. He was apparently acting under the influence of his sister's twenty-four-year-old boyfriend, who showed defendant pornographic films some time before the act of fellatio. Because defendant pled guilty to the juvenile charges, the prosecutor was not called upon to rebut the presumption that defendant did not possess the requisite intent to prove the offense. See State v. Monahan, 15 N.J. 34, 48 (1954) (Heher, J., concurring) ("The presumption of . . . incapacity as to children between the ages of seven and 14 is not conclusive, . . . but rebuttable in the particular case by a showing of sufficient intelligence to distinguish between right and wrong, and to understand the nature and illegality of the particular act . . . ."); see also State in the Interest of C.P., 212 N.J. Super. 222, 225-29 (Ch. Div. 1986) (dismissing aggravated sexual assault charges against six- and nine-year-old juveniles).

Defendant had also met his registration requirements through the age of eighteen. He tried to re-register in 2005, but was turned away, was unsure of the date he had to re-register, and then forgot about it in the rush of activities preceding graduation from high school. Furthermore, defendant became eligible for termination of his registration requirements when he turned eighteen. In In re J.G., 169 N.J. 304, 337 (2001), the Supreme Court held

that with respect to juveniles adjudicated delinquent for sexual offenses committed when they were under age fourteen Megan's Law registration and community notification orders shall terminate at age eighteen if the Law Division, after a hearing held on motion of the adjudicated delinquent, determines on the basis of clear and convincing evidence that the delinquent is not likely to pose a threat to the safety of others.

There is absolutely no evidence in the record that defendant would not have prevailed on such a motion. All of these individual factors, which the Prosecutor failed to consider, weighed against the interests of society support diversion. Thus, the failure to consider these individual features of defendant was a patent and gross abuse of discretion.

Finally, the Prosecutor relied on the prior adjudication of delinquency and the subsequent complaint alleging a violation of probation when defendant was twelve as factors that supported a refusal to divert defendant to PTI. Factor nine permits a prosecutor to consider "[t]he applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others." N.J.S.A. 2C:43-12(e)(9).

A withdrawn complaint of a violation of probation based on the mother's failure to take her twelve-year-old son to the St. Mary's Sex Offender Program is not evidence that falls within factor nine or any other factor, especially because there was no adjudication of a violation of probation. Thus, the Prosecutor committed a patent and gross abuse of his discretion when he decided that a dismissed complaint was a penal violation that supported rejection from PTI.

Neither was it proper to consider the adjudication that defendant, as a young child, was delinquent. An adjudication of delinquency is not a "crime" disqualifying defendant from PTI. Half a century ago, Justice Heher declared, "The Legislature in clear and indubitable terms admitting of no doubt of the purpose has decreed, as a prime and compelling measure of social policy, that a child under the age of 16 shall be deemed incapable of committing a crime . . . irrespective of the gravity of the misconduct . . . ." Monahan, supra, 15 N.J. at 46 (Heher, J., concurring). Consequently, it was a patent and gross abuse of discretion to consider defendant's juvenile delinquency as a factor supporting rejection from PTI.

Because none of the facts on which the Prosecutor relied supported rejection from PTI, it becomes clear that the reason for the rejection is the reason given by the assistant prosecutor - Megan's Law registrants are per se excluded from PTI. This is clearly a violation of Baynes, supra. The decision of the motion judge to compel admission into PTI was entirely consonant with the purposes of PTI: to provide applicants with an opportunity to avoid prosecution when it can reasonably be expected that supervision will deter future criminal behavior, to provide an alternative to prosecution for applicants who might be harmed by criminal sanctions, to permit the least burdensome form of prosecution for "victimless" offenses, to save criminal justice resources for prosecution of serious crimes and severe correctional problems, and to provide deterrence of future criminal behavior by applicants in supervisory treatment. N.J.S.A. 2C:43-12(a). The judge did not err when she concluded that this young man, who has overcome significant difficulties as a juvenile, would be harmed by the imposition of criminal sanctions for what was, essentially, a "victimless" offense, but who would benefit from supervision in the PTI program.

 
Affirmed.

The precise nature of his learning disability is not in the record.

Whoever completed the interview form did not clearly form the first number because it does not look quite like the number two next to it nor does it look quite like the number seven toward the bottom of the page.

There is no evidence in the record before us of the date he should have re-registered. Based on the 2004 form, his date of re-registration, inferentially, was not until June 22, 2005.

The officer, apparently, did not look at the 2002 and 2003 forms.

The procedure of taking a plea and then applying for PTI is improper. State v. Moraes-Pena, 386 N.J. Super. 569, 578 (App. Div. 2006) ("[Rule 3:28(h)] contemplates that the issue concerning enrollment into PTI shall be resolved before or at the pretrial conference and, in any event, before a plea or verdict.").

Of course, an adjudication of delinquency is not a criminal offense but merely an act "which if committed by an adult would constitute . . . [a] crime." N.J.S.A. 2A:4A-23.

By this time, defendant had successfully completed high school, attended one semester of college, and was working full-time due to financial constraints in continuing his college education.

The initial rejection letter stated that there were no personal problems or character traits that bore either on PTI admission or rejection.

(continued)

(continued)

21

A-4039-05T2

RECORD IMPOUNDED

December 4, 2006