STATE OF NEW JERSEY v. DONALD ROOSEVELT McCALIP, JR

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0540-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD ROOSEVELT McCALIP, JR.,

Defendant-Appellant.

_________________________________

December 16, 2010

Submitted December 1, 2010 - Decided

Before Judges Gilroy and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-10-2385.

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

LuisA. Valentin, Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the June 12, 2009 order that denied his motion seeking to reverse the Monmouth County Prosecutor's decision rejecting his application for admission into the County's pretrial intervention (PTI) program. We affirm.

A Monmouth County Grand Jury charged defendant with second-degree endangering the welfare of a child (distribution of child pornography), N.J.S.A. 2C:24-4b(5)(a) (count one), and fourth-degree endangering the welfare of a child (possession of child pornography) N.J.S.A. 2C:24-4b(5)(b) (count two). On January 5, 2009, defendant pled guilty to count two of the indictment. In return for defendant's guilty plea, the State agreed to dismiss count one of the indictment and to recommend a sentence of probation conditioned on defendant undergoing a pre-sentence psychiatric examination by Dr. Howard Silverman and abiding by his recommendations. Additionally, the State did not object to defendant making an application for admission into PTI.

On a date not disclosed in the record, defendant applied for admission into PTI. On April 1, 2009, the prosecutor rejected defendant's application. Defendant appealed that rejection. On June 12, 2009 the trial court denied the appeal. On that same day, the trial court, sentenced defendant pursuant to the negotiated plea agreement to three years of probation. It is from the June 12, 2009 order that defendant appeals.

Defendant is a forty-nine year old first-time offender. On September 27, 2007, the police executed a search warrant of defendant's home. The police interviewed defendant, who admitted to possessing child pornography on his computer. On examination of the computer, the police discovered it contained sixteen images and ten videos depicting child pornography. In a statement to the police, defendant explained that his initial exposure to child pornography was accidental, but that his curiosity drove him thereafter to purposefully seek out child pornography because it sexually aroused him.

On January 5, 2009, defendant pled guilty to count two of the indictment. On January 26, 2009, the Monmouth County Criminal Division Manager recommended that defendant be admitted into PTI. On January 29, 2009, defendant underwent a pre-sentence psychiatric evaluation with Dr. Silverman. In his report, Dr. Silverman indicated that defendant denied knowingly downloading child pornography or being sexually aroused by it. That statement conflicted with the initial statement defendant had given to the police.

On April 1, 2009, because of those conflicting statements, the prosecutor issued a written memorandum rejecting defendant's application for admission into PTI. The prosecutor determined that defendant was not amenable to rehabilitation because of his prior inconsistent statements regarding his conduct. The prosecutor explained in the memorandum:

As a result, determining the motives for a defendant's behavior in a matter such as this, become of paramount importance. Unfortunately, the defendant has not made the discerning of his intent, or the extent of his pathology, an easy matter. While a more comprehensive examination might provide greater insight into the defendant's behavior, it might not: the defendant has already made contradictory statements concerning his involvement in this matter. As a result, I would place no faith in a second examination and, as a result, have no way to determine, on this record, whether [PTI], would be a "sufficient sanction to deter criminal conduct" on the part of [defendant].

On April 13, 2009, defendant appealed seeking a reversal of the prosecutor's rejection. On April 20, 2009, at his counsel's request, defendant underwent a psychological evaluation by Dr. Philip Witt. In that examination, defendant admitted to purposefully downloading child pornography and to being sexually aroused by it. At the appeal hearing on June 12, 2009, the prosecutor acknowledged that he had reviewed Dr. Witt's report but that it did not alter his April 1, 2009 decision. On the same day, Judge Ronald Lee Reisner entered an order supported by an oral decision, denying defendant's appeal. In so doing, the court stated:

The Prosecutor took the position that the defendant's actions have not demonstrated that he would be an appropriate candidate because of his inability to determine exactly what type of rehabilitation . . . would be needed because of his contradictory statements.

Given these circumstances, the [c]ourt finds that the defendant's rejection from PTI was not arbitrary or capricious. The Prosecutor relied upon the relevant facts and circumstances of the offense, which is a proper criteri[on] for evaluating a PTI application. And also considered all of the relevant statutory criteria in making the determination.

The defendant's contradictory statements provide, in this case, a sufficient basis, under the law, for the Prosecutor to reject the application of this defendant to PTI. And under the law, this [c]ourt is not permitted to substituted its judgment for that of the Prosecutor.

. . . .

The fact that after the PTI denial was rendered . . . there was a second report that might provide a different explanation does not fall within the requirements of the law. [That is,] at the time the Prosecutor made this decision, it was a patent or gross abuse of discretion, or that it was arbitrary and capricious.

On appeal defendant argues:

Because the state refused to consider the further evaluation recommended by its own expert and the state's evaluation contained no individualized evaluation, the rejection of defendant['s] application for admission into the pretrial intervention program was a patent and gross abuse of discretion and must be reversed.

We reject defendant's argument.

PTI "represents a procedural alternative to the traditional system of prosecuting and incarcerating criminal suspects, and was intended as a response to deficiencies in that system." State v. Leonardis, 71 N.J. 85, 92 (1976). The diversionary program is governed by statute and court rule. N.J.S.A. 2C:43-12; R. 3:28. "Pretrial intervention is a discretionary program diverting criminal defendants from formal prosecution" and "[a]ny defendant charged with a crime is eligible for [the program]." State v. Caliguiri, 158 N.J. 28, 35-36 (1999); State v. McKeon, 385 N.J. Super. 559, 566 (2006). However, because PTI is discretionary, not every defendant is entitled to enter the program. See Pressler & Verniero, Current N.J. Court Rules, Guideline 2 on R. 3:28 (2011).

"The decision to grant or deny diversion to a defendant carries with it an obligation to fairly exercise the broad discretion given to the prosecutor, in light of the potential consequences to persons charged with criminal offenses." State v. Maldonado, 314 N.J. Super. 539, 544, (App. Div. 1998). "[T]o reverse the denial of an application for PTI[,] a defendant must clearly and convincingly establish that the prosecutor's refusal to consent to admission to the program was based upon a patent and gross abuse of discretion." Maldonado, supra, 314 N.J. Super. at 543; see also State v. Leonardis, 73 N.J. 360, 376 (1977). "'[A] patent and gross abuse of discretion' is more than just an abuse of discretion as traditionally conceived; it 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.'" Maldonado, supra, 314 N.J. Super. at 543 (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)).

"To overturn a prosecutor's decision[,] a party must show that [the] decision either failed to account for all the relevant factors, was based on irrelevant or inappropriate factors, or constituted a 'clear error in judgment.'" State v. Smith, 92 N.J. 143, 145 (1983) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). For a prosecutor's 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 [PTI]." Bender, supra, 80 N.J. at 93.

We have considered defendant's argument in light of the record and applicable law. We conclude that defendant failed to establish that the prosecutor's decision denying him admission into PTI constituted a "patent and gross abuse of discretion,". Maldonado, supra, 314 N.J. Super. at 543. We affirm substantially for the reasons expressed by Judge Reisner in his June 12, 2009 oral decision.

A