STATE OF NEW JERSEY v. ANGEL ESTEVEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2395-06T52395-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL ESTEVEZ, a/k/a

ANGEL A. ESTEVEZ,

Defendant-Appellant.

____________________________________

 

Submitted December 19, 2007 - Decided

Before Judges R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-05-1966.

J. Michael Farrell, attorney for appellant.

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Angel A. Estevez appeals from an order which denied his appeal of the Camden County Prosecutor and the Pre-Trial Intervention Coordinator's decision to deny him admission into the Camden Pre-Trial Intervention (PTI) program. We affirm. The relevant facts and procedural history are as follows.

On April 2, 2006, at approximately 3:15 a.m. in Camden, Officer Jose Rodriguez observed defendant passing vehicles on North 29th Street and River Road. Defendant was traveling at forty-eight miles per hour in a twenty-five-mile-per-hour zone. Officer Rodriguez activated his lights and siren, but defendant disregarded the signal to stop and continued. Defendant then made a right turn on North 27th Street and a left turn on Wayne Street. Defendant, at that time, turned off all of his vehicle lights. He then proceeded to make a left turn, the wrong way, on a one-way street. Eventually, he was apprehended, arrested, and charged with second-degree resisting arrest, eluding an officer in violation of N.J.S.A. 2C:29-2(b). Defendant was also issued various summonses, including charges for speeding, improper passing, driving the wrong way on a one-way street, failure to keep headlights on, and underage drinking.

On April 25, 2006, defendant's counsel wrote to the assistant prosecutor requesting the State consider downgrading the second-degree eluding charge, or alternatively, consenting to defendant's application for admission into PTI. On May 1, 2006, the prosecutor advised defendant's counsel, by letter, that the office would not downgrade the charge or consent to admission into PTI. On May 30, 2006, defendant was indicted and charged with one count of second-degree resisting arrest/eluding in violation of N.J.S.A. 2C:29-2(b). On June 30, 2006, defendant's counsel submitted defendant's application for PTI to the Camden County PTI Coordinator (the Coordinator).

By letter of July 21, 2006, the Coordinator advised defendant's counsel that defendant's application for PTI was being denied pursuant to Guideline 3(i) of Rule 3:28 because defendant had been charged with a second-degree crime and had failed to submit proof that the prosecutor had joined in the application. Further, the Coordinator cited N.J.S.A. 2C:43-12(e)(10), which requires consideration of whether the subject crime is one which had possible injurious consequences. The Coordinator concluded that defendant's behavior could have possible injurious consequences, given the fact that he was speeding, improperly passing, driving down a one-way street the wrong way without headlights in a residential area, and ignoring police direction to stop. In addition, the Coordinator cited N.J.S.A. 2C:43-12(e)(1), (2), (7), and (14) which require consideration of the nature of the offense, the facts of the case, the needs and interests of the victim and society, and whether the crime is of such a nature that the value of supervised treatment would be outweighed by the public need for prosecution.

Defendant filed a timely appeal from the Coordinator's decision. On October 13, 2006, Judge Thomas A. Brown, Jr. heard argument on defendant's appeal from the denial of his PTI application. Defendant argued that there were compelling reasons that were highly unusual and idiosyncratic which warranted defendant's admission into PTI. Defendant's counsel pointed out that defendant was twenty years old, was a full-time student who worked twenty-five hours a week at a printing business, and was now volunteering at a local church. Counsel stressed that defendant had no prior contact with the criminal justice system in either the United States or the Dominican Republic from which he immigrated and that he is appropriately in the country on a "green card." Defense counsel further argued that not all relevant factors were considered and that the decision was based on irrelevant or inappropriate factors that constituted a clear error in judgment.

The prosecutor's office argued that the nature of the offense was one that could have seriously injured members of the public and that defendant was charged with a second-degree offense rendering his case presumptively ineligible for PTI consideration without the joint application of defendant and the prosecutor. Further, the prosecutor argued that the facts were not so unusual or idiosyncratic as to warrant admission despite defendant's presumptive ineligibility under Guideline 3(i).

The trial court, in a thorough and well-reasoned opinion, reviewed the factual background, as well as the arguments of counsel. The court concluded,

The standards for review in this matter are well-established. Generally, a prosecutor has great discretion in selecting whom to prosecute and whom to divert to PTI, State v. Wallace, 146 N.J. 576, 582 (1996). However, if a defendant can clearly and convincingly show that the prosecutor's refusal for PTI admission was based on a patent and gross abuse of discretion, the reviewing court may overrule the prosecutor and admit the defendant to PTI. Id. See also State v. Nwobu, 139 N.J. 236, 239 (1995).

Now a patent and gross abuse of discretion 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.'" Wallace, supra, 146 N.J. at 583 (quoting State v. Ridgeway, 208 N.J. Super. 118, 130, (Law Div. 1985)).

In State v. Bender, 80 N.J. 84, 93 (1979), the Court stated that an abuse of discretion may be indicated if the defendant can show: a) not all relevant factors were considered; b) that irrelevant or inappropriate factors were considered; or c) there was a clear error in judgment. There is a clear error of judgment when the rejection is based on appropriate factors and rationally explained but is contrary to the predominate view of other[s] responsible for the administration of criminal justice. State v. Baynes, 148 N.J. 434, 444 (1997).

To rise to the level of patent and gross abuse, the defendant must further show that the prosecutorial error will clearly subvert the underlying goal of PTI. Bender, supra, 80 N.J. at 93. Given the deference, according to the prosecutor, the Wallace court noted that a prosecutor's decision to reject the PTI applicant rarely will be overturned. Wallace, supra, 146 N.J. at 585.

. . . .

Generally, any defendant charged with a crime is eligible for enrollment in PTI, but where the crime was deliberately committed with violence or threat of violence against another person, the defendant's application should generally be rejected. Guideline 3(i)(3) to Rule 3:28. Now, under such circumstances, the defendant may present facts and materials demonstrating immediate ability to rehabilitation, showing compelling reasons justifying the applicant's admission and establishing that a rejection would be arbitrary and unreasonable.

With regard to compelling reasons, the Court in Nwobu, supra, 139 N.J. 236, stated as follows: "It is true that one need not be 'Jean Valjean' to establish compelling reasons for admission to PTI, but there must be a showing greater than that the accused is a first-time offender and has admitted . . . or accepted responsibility for the crime. To forestall imprisonment a defendant must demonstrate something extraordinary or unusual, something 'idiosyncratic,' in his or her background." Id. at 252 (internal citations omitted).

Now, the reasons for admission given by the defendant are not extraordinary or unusual. They do not show something idiosyncratic in his background, so, therefore, the defendant's reasons are not compelling in PTI sense and do not overcome the presumption against his admission to PTI for alleged commission of a violent crime.

. . . .

Although the defendant presented evidence to his credit, the reasons submitted by the defendant are basically the same factors submitted by most, if not all, defendants seeking admission to the PTI program, and thus, are neither extraordinary or unusual.

In this particular case, the defendant . . . has a green card, and he is subject to possible, if convicted of this . . . very serious second-degree offense, . . . deportation. I have taken that into consideration in determining whether or not the PTI appeal should be considered meritorious. They did not show something idiosyncratic in his background, therefore, the defendant's reasons are not compelling in the PTI sense and do not overcome the presumption against his admission to PTI for the alleged commission of a second degree crime.

Overall, it appears that the PTI coordinator did, in fact, carefully weigh all relevant factors in light of the nature of the crime and the individual facts . . . presented in this case. Nevertheless, given the specific facts in this case, the severity of the crime and the threat of violence present under the circumstances, the defendant was rejected from the program.

Against the standard of review that grants the prosecutor great discretion and presumes that all relevant factors were considered, it would appear that this defendant should not prevail. The coordinator's decision in the case does not fall so wide of the mark that fundamental fairness and justice require judicial intervention, nor does it clearly subvert the underlying goals of PTI. Therefore, the defendant has failed to demonstrate a patent and gross abuse of discretion, which is very high standard, by the way.

In conclusion, Guideline 3(i) leaves room for judicial discretion, however, in the instant case, the crimes charged [are] clearly within the scope of those designated for presumptive exclusion. The defendant failed to overcome the presumptive exclusion and the court, therefore, denies his appeal.

This appeal ensued. On appeal, defendant presents the following argument for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S APPEAL OF HIS PTI REJECTION.

THE PROSECUTOR AND PTI COORDINATOR'S DECISION TO DENY THE DEFENDANT'S ADMISSION INTO THE PTI PROGRAM WAS A PATENT AND GROSS ABUSE OF DISCRETION; FAILED TO CONSIDER ALL RELEVANT FACTORS; WAS BASED ON IRRELEVANT OR INAPPROPRIATE FACTORS; CONSTITUTED A CLEAR ERROR IN JUDGMENT; AND DOES NOT CLEARLY SUPPORT THE GOALS UNDERLYING PRETRIAL INTERVENTION.

As we have recently said in State v. Liviaz,

[W]e take note of the general legal principles governing PTI. In deciding PTI applications, prosecutors must consider "an individual defendant's features that bear on his or her amenability to rehabilitation. State v. Nwobu, 139 N.J. 236, 255 (1995). And that evaluation "must be conducted in compliance with the criteria set forth in N.J.S.A. 2C:43-12(e), and reinforced in Guideline 3 [of Rule 3:28]." State v. Negran, 178 N.J. 73, 80-81 (2003). But prosecutors have "wide latitude" in their PTI decisions and our scope of review is "severely limited." Id. at 82. The judiciary's role is limited to checking "only the 'most egregious examples of injustice and unfairness.'" Ibid. (citing, among other cases, State v. Leonardis, 73 N.J. 360, 384 (1977)). And a "defendant attempting to overcome a prosecutorial veto must clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion

. . . ." Ibid. (internal quotations omitted).

[State v. Liviaz, 389 N.J. Super. 401, 403-04 (App. Div. 2007).]

Moreover, as the Supreme Court has stated:

To forestall imprisonment, a defendant must demonstrate something extraordinary or unusual, something "idiosyncratic," in his or her background. State v. Jabbour, 118 N.J. 1, 7 (1990). In the case of first- and second-degree crimes, something of this nature must be presented to establish compelling reasons for admission into PTI.

[Nwobu, supra, 139 N.J. at 252-53 (1995).]

Mindful of the scope of our review, and the discretion possessed by prosecutors in administering the program, we find, after a careful review of the record, no error in Judge Brown's determination. The trial judge recognized that Guideline 3(i) to Rule 3:28 provides that "[a] defendant charged with a first- or second-degree offense . . . should ordinarily not be considered for enrollment in the PTI program except on joint application of the defendant and the prosecutor." The record is clear that the prosecution opposed defendant's entry into a PTI program. The trial court also recognized that the Coordinator, in particular, was concerned with N.J.S.A. 2C:43-12(e)(10), which is whether the crime at issue was assaultive or violent in nature whether "in the criminal act itself or in the possible injurious consequences of such behavior." The trial court found that the facts in this case could certainly lead one to believe that there were possible injurious consequences to either the police officer in pursuit or the innocent public where an individual is speeding, at times with their headlights off, and driving the wrong way down a one-way street.

Moreover, the court examined the other factors cited by the Coordinator, namely those outlined in N.J.S.A. 2C:43-12(e)(1), (2), (7), and (14). Appropriately, the Coordinator and the trial court reviewed the nature of the offense, the facts of the case, the needs and interests of the victim and society, as well as whether the crime is of such a nature that the value of supervisory treatment is outweighed by the public need for prosecution. The court concluded that the analysis conducted by the Coordinator did not constitute an abuse of discretion, overlook any relevant factors, utilize irrelevant or inappropriate factors, or fail to support the goals underlying PTI.

Lastly, the court examined the argument that this defendant had something "extraordinary or unusual or idiosyncratic in his or her background," which presented compelling reasons for admission into PTI. See Nwobu, supra, 139 N.J. at 253. The court, as well as the PTI Coordinator, found nothing extraordinary or unusual about defendant's case. While it acknowledged that defendant had led a blameless life until now, and was recently involved in church activities, as well as being industrious, studious, and evidently hard-working, the court found that those factors did not set him apart in such a fashion as to establish compelling reasons for admission into PTI.

We find no abuse of discretion in the court's analysis. To the contrary, we agree with the court's analysis and affirm substantially for the reasons expressed by Judge Brown in his well-reasoned October 13, 2006, oral opinion.

 
Affirmed.

(continued)

(continued)

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A-2395-06T5

January 17, 2008