STATE OF NEW JERSEY v. TERRILL L. MITCHELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1672-08T41672-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRILL L. MITCHELL,

Defendant-Appellant.

___________________________________

 

Submitted January 26, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Warren County, Indictment No.

07-09-0375.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Abby P. Schwartz, Assistant

Deputy Public Defender, of counsel and on the

brief).

Thomas S. Ferguson, Warren County Prosecutor,

attorney for respondent (Dit Mosco, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his motion to be admitted to pretrial intervention ("PTI"). After reviewing the record in light of the contentions advanced on appeal, we have concluded we are constrained to affirm.

Defendant, who was eighteen years old, was driving an automobile in Phillipsburg on July 4, 2007, when he was stopped by Police Officer Larry Marino, Jr. for driving with an obstructed view. Defendant initially looked through the glove compartment for the vehicle's registration but could not locate it. He turned in the driver's seat to reach into the backseat area of the car to continue his search for the registration. While he was doing so, Officer Marino saw a handgun partially protruding from under the front passenger seat. Officer Marino drew his weapon and ordered defendant to step out of the car. He retrieved and secured the weapon, a .9mm, later identified as a Taurus Millennium PT 111. The weapon was loaded with six bullets, one of which was hollow nose. Defendant said the gun did not belong to him but rather to his friend, Donte, who had asked defendant to hold it for him. Later, defendant said that Donte had given him the gun to hold for a short time and had then taken it back. He said Donte had been in the car a few days earlier and, unbeknownst to defendant, must have left the gun in the car. He said he did not know Donte's last name. Defendant was charged with unlawful possession of a weapon, N.J.S.A. 2C:39-5b, a crime of the third degree; possession of a hollow nose bullet, N.J.S.A. 2C:39-3f, a crime of the fourth degree; and possession of a handgun by a person under the age of twenty-one, N.J.S.A. 2C:58-6.1b, a crime of the fourth degree.

Defendant had no prior involvement with the criminal justice system. Although he had not finished high school, he was close to getting his G.E.D. He was also working and, when he needed extra money, sought additional work through an agency placing temporary workers. Defendant applied for admission to PTI, but the director rejected his application. The prosecutor concurred with this decision. Defendant appealed to the Law Division, but it upheld the prosecutor's decision. Defendant then entered a negotiated plea of guilty to possessing a handgun while under the age of twenty-one and possession of a hollow nose bullet. The trial court sentenced defendant to eighteen months on probation. Defendant has appealed to this court from the order refusing his admission into PTI. R. 3:28(g).

We note, as did the trial court, the limited scope of our review in a matter such as this. The Supreme Court recently summarized the principles that must guide our consideration.

Our case law is well settled that the judiciary accords enhanced deference to a prosecutor's decision in respect of a PTI application. To succeed in challenging the denial of such application, a defendant must prove clearly and convincingly that a prosecutor's decision was a patent and gross abuse of his discretion. More specifically, a defendant must show that the prosecutor's decision (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 addition to that showing, a successful defendant must also demonstrate that the prosecutorial error complained of will clearly subvert the goals underlying [PTI].

As a practical matter, our standard of review translates into a high burden for defendants. Accordingly, [j]udicial review is available to check only the most egregious examples of injustice and unfairness. Lastly, although a prosecutor's discretion in this area is not unbridled, a prosecutor's decision to reject a PTI applicant will rarely be overturned.

[State v. Brooks, 175 N.J. 215, 225 (2002) (alterations in original) (citations and internal quotation marks omitted).]

We recently had occasion as well to address the restricted scope of judicial review of such decisions.

A trial court does not evaluate a PTI application as if it [stands] in the shoes of the prosecutor. And it cannot substitute its own judgment for that of the prosecutor even when the prosecutor's decision is one which the trial court disagrees with or finds to be harsh.

[State v. Hoffman, 399 N.J. Super. 207, 216 (App. Div. 2008) (alterations in original) (citations and internal quotation marks omitted).]

N.J.S.A. 2C:43-12(e) lists a variety of factors a prosecutor is to consider when weighing an application for admission to PTI, including the nature of the offense and the facts of the case, a defendant's age and motivation, whether it is likely that the particular crime is related to a condition or situation that would be conducive to change under supervisory treatment, whether a defendant has a record of criminal or penal violations, and whether the charged offense is violent or assaultive, either in itself or in its possibly injurious consequences. The statute lists seventeen factors in all but also provides that this listing is not exclusive or exhaustive.

In denying defendant's PTI application, the prosecutor noted that defendant had supplied apparently inconsistent versions of how the weapon came to be in his car, as well as the potential risk, to himself and to others, that is inherent in possession of a loaded weapon.

Defendant appealed this rejection to the trial court. He contended that the prosecutor's rejection of his application was arbitrary in light of the fact that the prosecutor had permitted other individuals charged with possessory weapons offenses to participate in PTI. In response to defendant's motion, the prosecutor submitted his brief reviewing each of the statutory factors, and his assessment as to the particular weight of each factor in this matter. The prosecutor noted, for instance, the inconsistent versions offered by defendant at various times and his conclusion that this demonstrated defendant's lack of motivation to comply with the requirements of PTI. He noted the strong societal interest in assuring compliance with New Jersey's laws regulating the possession of firearms and that there is no legitimate use for items such as hollow nose bullets. He noted that there was no indication that defendant had personal problems or character traits that would benefit from the supervisory treatment afforded in PTI or that the offense was related to a condition or situation that was conducive to change as a result of PTI's supervisory treatment. He also noted that while a possessory offense is by itself nonviolent, the possession of a loaded weapon poses an inherent risk of possible injury. He also noted that prosecution would provide a greater deterrent effect than would PTI.

Thereafter, the trial court issued a written opinion, which set forth in detail the analysis the prosecutor had submitted and the trial court's conclusion that the prosecutor had addressed each of the applicable factors, had not considered irrelevant and inappropriate factors and had not committed a clear error in judgment.

Defendant makes one contention on appeal:

BECAUSE IT RELIED ONLY ON THE NATURE OF THE OFFENSE WITHOUT ANY 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 have carefully reviewed this record, and we are unable to agree with defendant's argument. The prosecutor submitted a detailed analysis of each of the statutory factors in light of the instant matter. The trial court's conclusion that the prosecutor did not overlook a factor or consider inappropriate factors is amply supported by the record. Nor could we find that the decision to reject this application represented a clear error in judgment. It is immaterial whether we would have reached a similar judgment if we had been called upon to review this matter at the outset. We are called upon to answer one question only: was the prosecutor's decision a patent and gross abuse of his discretion. We are unable to say that it was, and we thus affirm.

Affirmed.

 

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A-1672-08T4

July 26, 2010