STATE OF NEW JERSEY v. DINESH NAIN

 

+NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4392-07T44392-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DINESH NAIN,

Defendant-Appellant.

___________________________________________________________

 

Submitted March 3, 2009 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

06-12-2745.

Clifford E. Lazzaro & Associates, P.C.,

attorneys for appellant (Heather A. Fierro,

on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mary R. Juliano,

Assistant Prosecutor, of counsel; Joseph M.

Competello, Assistant Prosecutor, on the

brief).

PER CURIAM

In a three-count indictment, defendant Dinesh Nain was charged with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count one); third-degree possession of a knife with a purpose to use it unlawfully, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count three). The charges resulted from an incident on July 16, 2006, when defendant allegedly threatened his wife with a knife during an altercation in the kitchen of their home.

A jury found defendant guilty of simple assault as a lesser-included offense of count one, N.J.S.A. 2C:12-1(a)(1); defendant was acquitted on count two; and the jurors were unable to reach a verdict on count three. The sentence imposed was a fine in the amount of $200, a Victims of Crimes Compensation Board penalty of $50, and a Safe Neighborhood Services Fund assessment of $75. Count three of the indictment was subsequently dismissed at the request of the prosecutor.

Defendant appeals from an order of the Law Division denying his motion to be admitted into the Monmouth County pretrial intervention (PTI) program over the prosecutor's objection. According to defendant, the trial court erred by failing to find that he clearly and convincingly proved the prosecutor's decision to reject his PTI application was a patent and gross abuse of discretion. Based on our review of the record and the applicable law, we conclude that defendant's argument does not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Consequently, we affirm with only the following comments.

Because of "the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003). Judicial review exists "to check only the most egregious examples of injustice and unfairness." State v. Leonardis, 73 N.J. 360, 384 (1977). "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 before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent." Negran, supra, 178 N.J. at 82 (internal quotations omitted).

To demonstrate a patent and gross abuse of discretion, a defendant must demonstrate the "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." State v. Bender, 80 N.J. 84, 93 (1979). In addition, a defendant must show "that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Ibid.

In this case, the PTI investigator recommended "the accused should be accepted into the PTI program," but the Monmouth County Prosecutor's Office concluded defendant was "an inappropriate candidate for PTI." The prosecutor's office cited three reasons for rejecting defendant's application: (1) N.J.S.A. 2C:43-12(e)(2), the facts of the case; (2) N.J.S.A. 2C:43-12(e)(10), the assaultive nature of the charged offenses and the risk that the victim may have been more seriously injured; and (3) Rule 3: 28 Guideline 3(i), which establishes a presumption against PTI if an offense is "deliberately committed with violence or threat of violence against another person." In addition, after the prosecutor's office filed its PTI rejection memorandum, it learned that the victim was opposed to the defendant's entry into PTI.

Defendant's motion appealing his rejection from PTI was heard by the trial court on April 12, 2007. After thoroughly reviewing the facts of the case and the applicable law, the court found that the prosecutor's decision to reject defendant's PTI application was based upon appropriate factors and there was no showing that the decision constituted a patent and gross abuse of discretion. Based on our review of the record, we are satisfied the matter was correctly decided. We agree the prosecutor's rejection of defendant's application was neither arbitrary nor unreasonable, and it certainly was not a patent and gross abuse of discretion. Accordingly, we affirm the order denying defendant's PTI appeal substantially for the reasons stated by Judge Mellaci on April 12, 2007.

Affirmed.

 

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A-4392-07T4

March 18, 2009