STATE OF NEW JERSEY v. M.F.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1377-07T41377-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.F.,

Defendant-Appellant.

_______________________________________

 

Submitted February 25, 2009 - Decided

Before Judges Rodr guez and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-0945.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from her conviction for two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); two counts of second-degree child endangerment, N.J.S.A. 2C:24-4a; and the denial of her post-trial application to the Pretrial Intervention Program (PTI). We affirm.

Following a jury trial, but before sentencing, defendant moved to allow the release of her psychiatric and psychological records for preparation of the presentence report. Defense counsel then requested that the State consider defendant's entry into PTI in light of the psychological records. Defense counsel argued that compelling reasons clearly existed to support defendant's admission to PTI. The State refused to consent to allow defendant to apply to PTI because she had already been found guilty by the jury. The judge imposed concurrent terms of four years on the aggravated assault and seven years on the endangering conviction.

The charges stem from the abuse by defendant and her boyfriend, William, of her son S.F., who was born with hydrocephalus; and their five-week-old daughter A.D., who was severely undernourished and had sustained unexplained fractures of the left humerus, left tibia and two ribs.

At the time the abuse was discovered, defendant, William and the two children resided with defendant's mother, Jill. Defendant's younger sister, Molly, resided with their father, Robert, but spent weekends at her mother's home.

On June 9, 2005, Robert was working as an announcer at the Keyport firemen's fair when he ran into Jill, defendant, William, and the two children. Robert noticed immediately that A.D. did not appear to be the same baby she was when he first saw her in the hospital after her birth. Robert testified that she looked frail. Robert also noticed the awkward way A.D. was holding one of her limbs. Robert asked when A.D.'s next doctor's appointment was scheduled. Defendant replied that it was in a couple of weeks. He told defendant to take A.D. to the doctor the following day because she did not look healthy. According to Robert, he had to go to his ex-wife's residence on a few occasions to speak with William because William drank and was abusive to defendant and the children.

Margaret, Robert's second wife, testified that when she saw A.D. at the fair she "was very tiny and her head was large and her eyes were very sunken. And she was just blank . . . . Her coloring was off. She just didn't look healthy." In addition, A.D. looked very messy and dirty.

Margaret testified to an occurrence involving S.F. When she took off a belt, replacing it with another, she heard a noise and looked over and saw S.F. shaking in a fetal position.

Defendant's younger sister, Molly, testified that prior to William coming into defendant's life, defendant took good care of S.F. Defendant only began to get distant with S.F. once William came into the picture. Molly testified that one time when she came home, A.D. was screaming and crying alone in Jill's bed. William was the only one home at the time. He was in defendant's room playing on the computer. Later, Molly told defendant that William left A.D. unattended. Defendant, however, did not say anything in response. Molly witnessed William physically grab S.F. and roughly lay him down to make him go to sleep and take a bottle. William would also drag S.F. around. Molly would see marks on S.F.'s arms and legs and really tight handprints that would turn into bruises. Molly, having been threatened by William, did not tell defendant or her mother or father because she was scared of William. Molly also testified that William abused defendant.

The day after the meeting at the fair, defendant brought five-week-old A.D. to the VNA Keyport Primary Care Center (the Center), a licensed medical facility available twenty-four hours a day and seven days a week. Robert White, a nurse practitioner working for the Center, testified that upon seeing A.D. it was obvious that she was underweight or had lost weight. A bottle was provided for A.D. at the Center, which she took very well. According to White, free formula would have been provided to defendant if she had not been able to afford it.

In addition to A.D.'s weight loss, there was also concern over her arm, as she was holding the arm against her chest with the wrist angled down. Defendant admitted to White that the injury had occurred two weeks prior but upon speaking with an aunt she decided it was not a concern. It was also noted that the baby wasn't wearing clean clothing and her hygiene was poor. White's diagnosis was a failure to thrive. White called the Keyport police and arranged for an ambulance to transport A.D. to the hospital.

In response to White's call, Keyport Patrolman Robert Aumack arrived at the Center. He saw that A.D. was lethargic and not responsive. He had a conversation with defendant, who made excuses for the weight loss and the injured arm. Defendant told Aumack that A.D. had rolled over, trapping her arm behind her. The child was transported to the Monmouth Medical Center.

Defendant returned home, while William accompanied A.D. in the ambulance. According to Aumack, William appeared very nervous and reluctant.

Keyport Police Lieutenant Casaletto testified that, while at the hospital, defendant told him that A.D. was not eating and confirmed what defendant had previously told Aumack, that A.D.'s arm was injured when she rolled over in bed. Defendant also expressed the opinion that the injuries could have happened at birth. When defendant was informed that the Division of Youth and Family Services (DYFS) was going to be taking custody of the children, she informed the hospital staff that she felt suicidal. She was kept at the hospital for the night. Casaletto noted surprise when the next day he saw defendant at the Keyport Firemen's fair with William.

Monmouth County Prosecutor's Detective Ellen Cannon spoke to defendant and William at the hospital. William informed her that he and defendant were interested in terminating all parental rights to A.D. and giving custody to Robert. Defendant, however, did not express an interest one way or the other in keeping S.F.

S.F. and A.D. were evaluated at the hospital by Dr. Mary Noble, a family and preventive medicine physician. Dr. Noble testified as an expert witness for the State. After examining and evaluating S.F.'s condition when he entered the hospital on June 10, 2005, Dr. Noble concluded that he did not exhibit any signs of abuse or neglect. Dr. Noble again evaluated S.F. on September 15, 2005, while he was in a foster home, and it appeared that he was thriving.

Dr. Noble opined that when A.D. was admitted to the hospital, she was underweight, measuring in only the third percentile. Six months later she was in the fiftieth percentile, pushing up to the seventy-fifth percentile as to her weight. A.D. was noted as having a bruise on her chest, and X-rays revealed that there were healing fractures of the left humerus, the left tibia and two posterior ribs. A.D. was also noted as having a radial nerve palsy in one of her arms, meaning that she had difficulty extending her wrist and fingers. A.D.'s skin was described as dry, pale and macerated with decreased areas of subcutaneous fat.

Dr. Noble performed a follow-up examination on September 15, 2005, and found that A.D. had gained a very large amount of weight and was developing very nicely. Dr. Noble concluded that A.D.'s injuries and loss of weight were consistent with inflicted trauma rather than an accident.

William testified for the defense. He admitted that he had hurt A.D. on a couple of occasions. He had twisted her arm and leg and had squeezed her. He was not feeding her on the schedule given by the doctor and admitted to skipping feedings. He testified also that he was "a little more rough with [S.F.] than I should have been for a toddler."

William pled guilty to the entire indictment, two counts of second-degree child endangerment and four counts of second-degree aggravated assault. He was sentenced on March 23, 2007, to six concurrent terms of seven years with a NERA parole disqualifier.

William told the jury that the reason he was testifying for defendant was not out of love for her but because she did not do anything wrong. William admitted that he also had been violent with defendant because he was not on his medications. Defendant mainly just stayed away from him because she knew that at any time he could just snap.

On appeal, defendant contends:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S APPLICATION INTO "PTI" WHERE DEFENDANT BECAME ELIGIBLE FOR SAME POST-CONVICTION.

We are not persuaded.

Defendant was barred from seeking PTI post-trial by virtue of Rule 3:28(h). That rule permits filing from "the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after indictment." Ibid. The judge had no authority to grant defendant's post-trial application.

Moreover, defendant has failed to demonstrate her amenability to the rehabilitative process or compelling reasons for admission into the program. Such showings are required in order to overcome the strong presumption against admission into PTI when: (1) the application is over the prosecutor's objection; and (2) made by an applicant charged with a second-degree crime. See State v. Baynes, 148 N.J. 434, 442 (1997).

Guideline 3(i) to Rule 3:28 provides that, although the nature of the offense is but a factor to be considered in reviewing the application, a defendant charged with a first or second-degree offense "should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor." Pressler, Current N.J. Court Rules, Guideline 3(i) to R. 3:28 at 1027-28 (2009). See State v. Nwobu, 139 N.J. 236, 252 (1995). This presumption reflects the public policy behind PTI, that the program is a diversion from the prosecutorial process to be used only in the appropriate case. Pressler, Current N.J. Court Rules, Guideline 1 to R. 3:28 at 1025 (2009). Thus, a person whose situation falls outside the PTI guidelines is presumptively not permitted entry into the program.

When an application is rejected because the defendant is charged with a first or second-degree crime, and the prosecutor refuses to consent to enrollment, such a refusal should create a rebuttable presumption against enrollment. Pressler, Current N.J. Court Rules, comment on Guideline 3(i) to R. 3:28 at 1030 (2009). The defendant then has a heavy burden in overcoming the presumption against PTI in that "compelling reasons" must be established. Nwobu, supra, 139 N.J. at 252. To establish compelling reasons, there must be more than a showing that the accused is a first-time offender and has accepted responsibility for the crime. Ibid.

Here, defendant simply has failed to demonstrate by clear and convincing evidence that the prosecutor's refusal to permit enrollment constituted a patent and gross abuse of discretion.

II. DEFENSE COUNSEL ERRED IN FAILING TO SEEK PRE-TRIAL INTERVENTION PRIOR TO TRIAL AND IN FAILING TO DO SO, WAS CONSTITUTIONALLY INEFFECTIVE. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., (1947), ART. I, PARS. 1 AND 10 (Not Raised Below).

We disagree.

Defendant argues that her trial counsel was ineffective for failing to seek PTI prior to trial in order to properly preserve the issue on appeal. Defendant contends that her psychological records provide compelling reasons for her admission into PTI, and the records were available to counsel prior to trial.

The general policy of the New Jersey courts has been not to entertain an ineffective assistance of counsel claim on direct appeal if the allegations are supported by evidence outside of the trial record. State v. Preciose, 129 N.J. 451, 460 (1992). Here, however, the ineffective assistance of counsel claim is based on facts that are already part of the record. Therefore, we consider the issue at this time.

Judged against the standard for ineffective assistance of claims, set by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58, 60-61 (1987), we reject the allegation.

Here, defendant is unable to establish prejudice pursuant to the second prong of the Strickland/Fritz standard. In short, she has failed to show that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

As already discussed, defendant was presumptively ineligible for PTI because she was charged with six second-degree offenses involving violence.

Moreover, when defendant applied to PTI out of time, the prosecutor stated on the record during sentencing that if defendant had submitted a pre-trial PTI application, it would have been denied. Therefore, the record does not support defendant's contention that she was prejudiced by counsel's failure to apply for PTI prior to trial. The evidence instead reflects that the prosecutor would have rejected any such application.

III. THE COURT BELOW ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT.

A. Based On The Record Below, and

the Unique Circumstances Herein, A Probationary Sentence Was Justified.

We disagree.

Defendant was twenty-one-years old at the time of sentencing. She had no prior history of convictions. The judge found two of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that defendant will commit another offense; and (9) the need for specific and general deterrence from violating the law. The judge also found one of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (7) defendant has no history of prior delinquency or criminal activity.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

 
Affirmed.

The judgment of conviction indicates erroneously that these were second-degree convictions.

No Early Release Act, N.J.S.A. 2C:43-7.2.

(continued)

(continued)

13

A-1377-07T4

RECORD IMPOUNDED

July 24, 2009