STATE OF NEW JERSEY v. MICHAEL ANDY LEBRON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0357-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

MICHAEL ANDY LEBRON,

Defendant-Appellant.

__________________________________

December 27, 2010

Submitted: December 15, 2010 - Decided:

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-04-0246.

Yvonne Smith Segars, Public Defender, attorney for appellant (Cecelia Urban, Assistant Deputy Public Defender, of counsel and on the brief).

GeoffreyD. Soriano,Somerset County Prosecutor, attorney for respondent (James L.McConnell, SpecialDeputy Attorney General, on the brief).

PER CURIAM

Defendant Michael Andy Lebron appeals from the denial of his application for admission to the PreTrial Intervention (PTI) program. Defendant was charged with third degree burglary, N.J.S.A. 2C:18-2; and third degree theft, N.J.S.A. 2C:20-3. He was eighteen years old at the time of the offenses.

Following denial of PTI on January 29, 2009, defendant pled guilty to the charged offenses and to several disorderly persons offenses arising out of a stop of his automobile. Defendant was sentenced to three years probation conditioned upon serving ninety days in jail, fifty hours of community service, and submission to substance abuse evaluation and treatment. In addition to $1,100 in restitution, the usual fines and penalties were imposed.

On appeal, defendant raises the following argument:

THE DECISION DENYING DEFENDANT'S APPLICATION TO THE SOMERSET COUNTY PTI PROGRAM CONTAINED NO INDIVIDUALIZED EVALUATION; WAS BASED ON AN APPLICATION OF A PER SE RULE EXCLUDING A CLASS OF PTI APPLICANTS, AND DEFEATED THE GOALS OF THE PTI PROGRAM. CONSEQUENTLY, IT WAS A PATENT AND GROSS ABUSE OF DISCRETION THAT MUST BE CORRECTED BY THIS COURT.

We affirm.

Defendant lived in an apartment in Manville. On March 20, 2008, defendant entered the apartment of his upstairs neighbor and removed a computer, cell phones, and a safe. Defendant did not have permission from his neighbor to enter the apartment or to remove anything. Defendant claimed he took the items because he felt the victim owed him.

The PTI program director rejected defendant's application for PTI. He noted the serious nature of the offense of burglary. Judge Armstrong held that defendant did not overcome the presumption that the prosecutor properly exercised his considerable discretion. The judge also noted the serious nature of the offense of burglary and found that the State weighed all relevant factors.

"The primary purpose of [PTI] is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system." State v. Watkins, 193 N.J. 507, 513 (2008). PTI is an alternative to criminal prosecution. It provides supervisory treatment in lieu of criminal sentencing for defendants whose criminal activity can be deterred through such supervisory treatment. Ibid. PTI is controlled by N.J.S.A. 2C:43-12 and Rule 3:28. Under these rules, "[e]ligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change . . . ." Watkins, supra, 193 N.J. at 513. However, the statute and rule also recognize that not all defendants are worthy candidates. Ibid.

Diversion of candidates into PTI is a prosecutorial function, and thus, the prosecutor is endowed with great discretion in deciding whether to prosecute or divert defendants. State v. Nwobu, 139 N.J. 236, 245-46 (1995). Still, the PTI guidelines involve the judiciary in the administration of the program. Id. at 245. This involvement includes "the power to review the operation of court initiated procedures and to review the legal determinations made pursuant to those procedures." State v Leonardis, 71 N.J. 85, 109 (1976) (Leonardis I). Nevertheless, the scope of judicial review is limited. State v. Leonardis, 73 N.J 360, 381 (1977) (Leonardis II).

The standard of review is outlined in State v. Kraft, 265 N.J. Super. 106 (App. Div. 1993). "[I]t has clearly been acknowledged that . . . once [the prosecutor] has determined that he will not consent to the diversion of a particular defendant, his decision is to be afforded great deference." Id. at 111 (citing Leonardis II, supra, 73 N.J. at 381). The court describes the degree of deference required as enhanced or extra deference. Ibid. (citing State v. DeMarco, 107 N.J. 562, 566 (1987). There is an expectation that prosecutor's PTI decisions "'rarely will be overturned.'" Ibid. (quoting Leonardis II, supra, 73 N.J. at 380). Therefore, judicial review is appropriate "to check only the most egregious examples of injustice and unfairness." Leonardis II, supra, 73 N.J. at 384. Thus, "[a]s a general rule, a trial court may not order admission over a prosecutor's objection unless the defendant can establish clearly and convincingly that the objection constitutes a 'patent and gross abuse of discretion.'" DeMarco, supra, 107 N.J. at 566 (quoting State v. Dalglish, 86 N.J. 503, 506 (1981)).

With this standard of review in mind, the next step is to examine the statutory factors governing PTI, and the specific procedure and analysis followed here. In general, the appropriateness of a defendant's admission into PTI is measured by the defendant's amenability to correction and responsiveness to rehabilitation, as well as by the nature of the offense. Leonardis I, supra, 71 N.J. at 122. See Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:43-12 (2010). The PTI director and prosecutor must evaluate the merits of a PTI application according to the Guidelines and statutory factors enumerated under N.J.S.A. 2C:43-12e. The statement of reasons for denying PTI admission must reflect a proper consideration of all relevant factors. State v. Wallace, 146 N.J. 576, 584 (1996).

The PTI analysis must emphasize the character of the offender over the offense committed. Leonardis I, supra, 71 N.J. at 102. Defendant argues the State abused its discretion because it did not consider any factors favoring defendant's admission and relied on an erroneous presumption of a per se exclusion of burglars from PTI.

Prosecutors are clearly required to explain their reasons for denying a defendant admission into PTI. Wallace, supra, 146 N.J. at 584. However, there is a presumption that a prosecutor has considered all the factors absent a demonstration by the defendant to the contrary. Ibid. (citing State v. Bender, 80 N.J. 84, 94 (1979).

N.J.S.A. 2C:43-12e lists seventeen factors the prosecutor must consider when rendering a PTI determination. However:

nowhere does the statute attempt to instruct the prosecutor on the relative weight to be assigned these several criteria. Although the Legislature has highlighted several factors for the prosecutor or program director to consider, it clearly intended to leave the weighing process to the prosecutor or program director.

[Wallace, supra, 146 N.J. at 585-86.]

Here, Judge Armstrong remanded defendant's PTI application for reconsideration. Following further review, the PTI director explained his rejection as follows:

We and the State consider the crime of Burglary, particularly when it involves a dwelling home to be a serious offense, due not only to the violation of the victim's home, but because of the high degree of risk of a confrontation between the perpetrator and the innocent victims. Admission into PTI would therefore be inappropriate due to the seriousness of the offense and the value of diversion to your client being outweighed by the public need for prosecution of these charges.

The PTI director clearly accorded great weight to the seriousness of burglary as a crime, and the policy considerations buttressing vigorous prosecution of burglaries.

Judge Armstrong accepted this reasoning. The judge stated:

[D]efendant fails to rebut the presumption against him.

The defendant has not provided the court with compelling reasons why he should be admitted into PTI. There has been no evidence provided that clearly and convincingly establish[ed] the Prosecutor's refusal to sanction admission into the PTI program was based upon a patent and gross abuse of discretion. . . .

The defendant had the burden of proof that the State's rejection of him from PTI constituted a patent and gross abuse of discretion. The defendant has failed to meet this burden of proof.

The State properly weighed all the relevant factors and determined the seriousness of the offense warrant's the defendant's rejection from PTI. In view of the fact that the court finds the decision to reject the defendant from PTI was, indeed, based on discernible, rational grounds, considering the enhanced deference afforded to the Prosecutor, this court will not overturn its decision.

A prosecutor's decision to reject a defendant's application for admission into PTI, will stand unless a defendant can "'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 discretion . . . .'" Kraft, supra, 265 N.J. at 112 (quoting Dalglish, 86 N.J. at 509). This a heavy burden for a defendant to fulfill. Ibid.

A patent and gross abuse of discretion in this context is explained as follows:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a 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. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.

[Bender, supra, 80 N.J. at 93.]

Here, the judge employed the correct standard in evaluating the director's decision to reject defendant from the PTI program.

Notably, our prior decision in Kraft is virtually identical to this case. In Kraft, this court upheld the prosecutorial veto of a defendant's request to enter PTI. Kraft, 265 N.J. Super. at 116. The defendant had also committed a burglary, id. at 109; the prosecutor similarly found that the policy reasons undergirding vigorous prosecution of burglaries tended to disqualify the defendant from admission into PTI, id. at 116. This court characterized the prosecutor's reasons as "entirely unassailable, as they were expressly grounded upon criteria set forth in the governing statute." Id. at 117-18.

Contrary to defendant's contention, the prosecutor did not rely on a view that the burglary charge required a per se rejection of his application. Here, defendant was a neighbor of the victim and resorted to an unlawful entry to steal the victim's property as a means to right a perceived wrong. Defendant's actions not only violated the security of a neighbor in his home but suggest that defendant's rehabilitation prospects are questionable.

We, therefore, affirm the January 29, 2009 order denying defendant's appeal of his rejection from the PTI program.

Affirmed.