STATE OF NEW JERSEY v. KELLEY MOSLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4525-04T44525-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELLEY MOSLEY,

Defendant-Appellant.

__________________________________

 

Submitted May 2, 2006 - Decided May 19, 2006

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-08-1685.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Yasmeen Shihabi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted for possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); and possession of a defaced firearm, in violation of N.J.S.A. 2C:39-3(d). Defendant entered into a plea agreement under which he agreed to plead guilty to the charge of possession of a handgun without a permit and the State agreed to dismiss the charge of possession of a defaced firearm.

Defendant made an application for admission into the Pretrial Intervention Program (PTI), which the PTI coordinator and county prosecutor rejected. Defendant then filed a motion to compel his admission into PTI, which the trial court denied. The court subsequently sentenced defendant to a suspended three-year term of imprisonment.

Defendant's sole argument on appeal is that the trial court's denial of his application for admission into PTI constituted a patent and gross abuse of discretion.

The PTI coordinator gave the following reasons for rejecting defendant's application for admission into PTI:

You are applying for admission into the Atlantic County Pre-Trial Intervention program as a result of your 7/17/04 arrest in Atlantic City and subsequent indictment on charges of Unlawful Possession of a Firearm and Possession of a Defaced Firearm. According to the discovery, your arrest occurred as a result of a police surveillance of an area in Atlantic City known for its high drug activity. When the police came upon you and your three associates you were observed shoving your right hand into your waistband and abruptly walking away from the area. A search of your person revealed a defaced and loaded handgun stuffed in your waistband. Marijuana was also found at the scene of the arrest but you were not charged.

In response to your PTI application, on 11/29/04 you were afforded a personal interview. As revealed during that interview you candidly acknowledge that you did possess the loaded handgun in question and that you had purchased it off the street about a year ago. You have no license to purchase or carry and you had the weapon for protection.

You are described as being a 20 year old, single, Black male with one child. You are currently on active duty with the US Navy. You joined the Navy on 8/6/03 and you are an "operations specialist." The instant offense occurred while you were on leave. This appears to be your only adult arrest. As a juvenile, however, you were cited on ten occasions for illegal conduct. Of particular note are seven arrests for aggressive behavior (Fighting-3, Simple Assault-2, Riot & Harassment). Your juvenile arrests resulted in juvenile diversions and probation and included anger management counseling.

Although you have had brushes with the law in the past they were juvenile matters and your enlistment in the Navy is viewed in a very favorable light. Therefore, PTI is hard-pressed to conclude that you would not be amenable to its program of rehabilitation. Notwithstanding this belief, PTI is nonetheless compelled to reject your application on the grounds that diversion would deprecate the seriousness of your alleged behavior because it involves a readily accessible, loaded handgun, and because diversion would seemingly be counter-productive in law-enforcement's efforts to rid the streets of illegal handguns. Probably it is because of this law-enforcement effort and the realization that illegally possessed handguns are responsible for many deaths and injuries each year that the Prosecutor's Office has taken the position of diverting handgun cases only under the best of circumstances. Usually these circumstances involve permits to carry from another state and the absence of any prior arrests and provoking circumstances. You have neither a permit to purchase nor to carry and you do not appear to have possessed the handgun for any lawful purpose and your arrest occurred in an area know[n] for high drug activities according to the police. In fact, you claim that you possessed the weapon for protection suggesting that you would use it against others if need be. Of course, PTI does not know why you truly possessed the weapon or why you felt the need for protection albeit there are not too many non-life threatening things that can be done with a handgun, especially a readily accessible one possessed by a young person residing in a high crime area where acts of violence with weapons is not uncommon.

The prosecutor opposed defendant's application for PTI for the reasons stated by the PTI coordinator.

The trial court concluded that the rejection by the PTI coordinator and prosecutor of defendant's application for admission into PTI was "rationally based." The court noted that defendant's conviction could result in his discharge from the Navy, but concluded that the seriousness of the offense that defendant had committed and the need for deterrence outweighed this consideration.

"To succeed in challenging the denial of [an] application [for PTI], a defendant must prove 'clearly and convincingly' that a prosecutor's decision was a 'patent and gross abuse of his discretion.'" State v. Brooks, 175 N.J. 215, 225 (2002) (quoting State v. Leonardis, 73 N.J. 360, 382 (1997)). "More specifically, a defendant must show that the prosecutor's decision '(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.'" Ibid. (quoting State v. Bender, 80 N.J. 84, 93 (1979)). "In addition to that showing, a successful defendant also must demonstrate 'that the prosecutorial error complained of will clearly subvert the goals underlying [PTI].'" Ibid. (quoting Bender, supra, 80 N.J. at 93).

The trial court correctly concluded that defendant failed to carry this heavy burden. The circumstances of defendant's crime were aggravated: the handgun he possessed without a permit was loaded, it was concealed on his person, and it was defaced. Furthermore, defendant admittedly purchased the handgun on the street, and he possessed the handgun while in the company of three other persons, one of whom possessed marijuana. These circumstances were fraught with the potential for violence. Although defendant had no prior adult criminal record, he had a long series of arrests as a juvenile, several of which resulted in adjudications of delinquency and three of which resulted in probationary sentences. Two of defendant's adjudications of delinquency were for simple assault, and two others were for fighting. Thus, defendant's juvenile offenses manifested a propensity for violence. Brooks expressly held that a defendant's juvenile criminal history may be considered in determining whether he should be admitted into PTI. 175 N.J. at 226-28. In light of the seriousness of the offense committed by defendant and his significant juvenile record, there is no basis for concluding that the rejection of defendant's PTI application constituted a patent and gross abuse of discretion. It is also clear that the PTI coordinator and prosecutor considered all relevant factors in denying defendant's application.

Affirmed.

 

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A-4525-04T4

May 19, 2006