STATE OF NEW JERSEY v. DANIEL J. WISE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0285-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL J. WISE,

Defendant-Appellant.

________________________________________________________

October 4, 2010

Argued September 14, 2010 - Decided

Before Judges Carchman and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-10-01800.

Jane M. Personette argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel; Ms. Personette, on the brief).

Vered Adoni, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Adoni, of counsel and on the brief).

PER CURIAM

Defendant Daniel J. Wise appeals from the April 8, 2009 order affirming the Bergen County prosecutor's rejection of his application for admission to the Pretrial Intervention Program (PTI). Defendant argues that the prosecutor's decision was "arbitrary and capricious and amount[ed] to a patent and gross abuse of discretion," that "clearly subvert[ed] the goals underlying PTI." We have considered the argument in light of the record and applicable legal standards. We affirm.

The Bergen County grand jury returned indictment 08-10-01800-I, charging defendant and Justin Bucci with third-degree burglary, N.J.S.A. 2C:18-2a(1); third-degree theft, N.J.S.A. 2C:20-3; fourth-degree employing a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9; and third-degree trafficking in stolen property, N.J.S.A. 2C:20-7.1(b).1 Defendant's application to PTI was rejected by the program director; defendant appealed. Thereafter, the prosecutor issued his joint "response to . . . defendant[']s[] initial application for entry into [PTI] and . . . to defendant[']s[] appeal of [his] denial of . . . entry into [PTI]." After oral argument, Judge Donald R. Venezia affirmed the prosecutor's denial of defendant's admission into the program and defendant pled guilty to third-degree theft. He was sentenced to probation for two years, ordered to make restitution in the amount of $12,000, and the appropriate financial penalties were imposed upon him. This appeal ensued.

We begin by recognizing the standards that inform our review. Prosecutors are permitted "wide [discretion] 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) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). "Because of the recognized role of the prosecutor, we have granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI." State v. DeMarco, 107 N.J. 562, 566 (1987) (citing State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)). As a result, the scope of our review "is severely limited . . . [and] serves to check only 'the most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)) (citations omitted). "The question is not whether we agree or disagree with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.

"The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993). A defendant can demonstrate an abuse of prosecutorial discretion "if [he] can show that a . . . 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). But, in order to succeed, a defendant must show more.

To overturn the prosecutor's denial of his admission, a defendant must "clearly and convincingly establish that the prosecutor's refusal . . . was based on a patent and gross abuse of his discretion . . . ." Kraft, supra, 265 N.J. Super. at 112. (citations and quotations omitted) (emphasis omitted). "[A]n abuse of discretion . . . rise[s] to the level of 'patent and gross' . . . [whenever it] clearly subvert[s] the goals underlying [PTI]." Bender, supra, 80 N.J. at 93. We apply these principles in the context of this case.

Defendant and Bucci were arrested by the Paterson police as they attempted to pawn various items believed to have been stolen. The Paterson police contacted the police in Ridgewood, where defendant resided; they responded and photographed the items, including an IPOD, a Garmin navigational device, and a watch. Several days later, John and Sandy Gaul returned to their Ridgewood home from vacation, only to find that it had been burglarized and ransacked, and numerous personal items were missing. Their report to the Ridgewood police prompted an investigation that led to defendant, Bucci and others.

Bucci acknowledged that he and defendant were told by another friend how to enter the Gaul home -- through an unlocked rear window -- and did so to find other friends already inside. Bucci told police that defendant emptied the contents of a jewelry box into his jacket, while Bucci filled several bags with silver coins. They placed the items in Bucci's car and agreed to pawn them in a few days in Paterson, where they were ultimately apprehended.

While the police investigation unveiled the involvement of ten other high school students, defendant and Bucci were the only adults. Defendant, in fact, had turned eighteen only three days before committing the burglary.

In affirming the prosecutor's rejection of defendant's application, Judge Venezia noted that "this [wa]s a residential burglary. . . . [N]ot . . . a trespass." Noting defendant might not be "[a] real criminal," the judge concluded defendant had committed "a criminal act" for which he should be held "accountable . . . ." Judge Venezia further concluded that the prosecutor had not abused his discretion in rejecting defendant's admission into PTI because this was "a calculated situation which [defendant] now ha[d] to pay the price for."

In rejecting any applicant for admission to PTI, the prosecutor must provide, "a clear statement of reasons for the denial." Negran, supra, 178 N.J. at 82 (citing N.J.S.A. 2C:43-12f). Before us, defendant concedes that the prosecutor did so, and further concedes that the statement demonstrated the prosecutor's thorough review of defendant's individual characteristics. See Nwobu, supra, 139 N.J. at 255. Defendant argues, however, that the prosecutor misapplied various factors and failed to consider others.

The argument lacks sufficient merit to warrant extensive discussion, Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Venezia and the prosecutor. We add only the following brief comments.

Although the prosecutor's rejection notice did not list all the factors contained in N.J.S.A. 2C:43-12e, we have noted that "[g]enerally, 'it is presumed that the prosecutor considered all relevant factors before rendering a [PTI] decision.'" State v. Hoffman, 399 N.J. Super. 207, 215 (App. Div. 2008) (quoting Dalglish, supra, 86 N.J. at 509). Although defendant contends the prosecutor did not consider that the criminal acts were non-violent and that he had no history of violence or involvement with organized crime, N.J.S.A. 2C:43-12e(10),(12) and (13), and that the prosecutor failed to properly consider his young age, N.J.S.A. 2C:43-12e(3), it is clear from the prosecutor's submission that he did consider defendant's age. The omission of explicit reference to the other factors does not establish they were not considered. Hoffman, supra, 399 N.J. Super. at 215.

We are also convinced that the prosecutor appropriately considered the impact of these crimes upon the victims and that the crimes established a pattern of criminal behavior. N.J.S.A. 2C:43-12(7) and (8). Defendant engaged in conduct that was more than a harmless prank. After illegally entering the victims' home, defendant's actions exceeded the bounds of poor judgment when he consciously stole valuable items and planned, with Bucci, to subsequently pawn those items for profit several days later. Together with Bucci, defendant's criminal conduct continued well after he left the Gaul's home. These facts, along with the others cited by the prosecutor and Judge Venezia, convince us that the prosecutor did not commit a patent and gross abuse of his discretion by denying defendant's admission into PTI.

A

1 Additionally, Bucci was charged alone in three other counts of the indictment with additional crimes.