STATE OF NEW JERSEY v. SALIK HEIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3867-07T43867-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SALIK HEIGHT,

Defendant-Appellant.

________________________________

Submitted January 20, 2010 - Decided February 19, 2010

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law

Division, Somerset County, Indictment No. 07-06-0455.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Daniel Brown, Designated Counsel, on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and the brief).

PER CURIAM

Defendant Salik Height appeals from an order of the Law Division denying his motion to be admitted into the Pretrial Intervention (PTI) program over the objection of the PTI Director and County Prosecutor, and from the sentence imposed on his guilty plea conviction of third-degree possession of crack cocaine. We affirm.

The relevant facts are as follows. On May 3, 2007, the vehicle that the twenty-four year old defendant was operating, and in which a juvenile was a passenger, was stopped by a Franklin Township police officer, who noticed in plain view a plastic bag of suspected crack cocaine lying on the vehicle's floor between the passenger seat and door. After the occupants were removed, the vehicle was searched and three more bags of suspected crack cocaine were discovered. All four bags later tested positive for cocaine.

Defendant was arrested and charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and the disorderly person's offense of possession of narcotic paraphernalia, N.J.S.A. 2C:36-2. On June 6, 2007, defendant applied for admission into Somerset County's PTI program. In rejecting defendant's application under Rule 3:28, the PTI Director referred to two of the statutory considerations, N.J.S.A. 2C:43-12e(8); N.J.S.A. 2C:43-12e(9), noting that "[t]he crime or crimes defendant is charged with constitute part of a continuing pattern of antisocial behavior or the defendant has a record of criminal and penal violations and presents a substantial danger to others." In particular, the PTI Director found that as a juvenile, on November 17, 2000, defendant was adjudicated delinquent for two counts of burglary and theft each, and one count of criminal mischief. He was placed on probation for one year, which he violated on July 13, 2001, when defendant was adjudicated delinquent for resisting arrest and aggravated assault. He was again placed on probation and on December 21, 2001, defendant was adjudicated delinquent a final time for a second probation violation. He received yet another probationary term. As an adult, defendant was convicted of two disorderly person's offenses, and a violation of a municipal ordinance. The County Prosecutor concurred with the PTI Director's recommendation.

The same day his PTI application was rejected, defendant was indicted for third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). Defendant then appealed his PTI rejection to the Law Division. In denying the appeal, the judge concluded:

Under the circumstances of this case, the public benefits from general and specific deterrence outweigh the Defendant's personal desire to P.T.I. Therefore, the P.T.I. Director and Prosecutor's rejection on that basis cannot be said to be a patent and gross abuse of discretion.

Thereafter, defendant agreed to plead guilty to the indictment, reserving his right to appeal the denial of admission to PTI, while the State agreed to dismiss the disorderly person's offense, and recommend a probationary sentence. On February 8, 2008, defendant was sentenced to three years probation and ordered to perform fifty hours of community service, undergo alcohol and/or drug abuse evaluation, and obtain treatment if found necessary. Defendant's driver's license was suspended for six months, and appropriate fees and penalties were also imposed.

On appeal, defendant raises the following issues for our consideration:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED MR. HEIGHT'S PTI APPEAL BECAUSE THE PROSECUTOR'S REJECTION OF MR. HEIGHT'S APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION.

II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).

We have considered these arguments in light of the record and the applicable legal precedents and have found them to be unpersuasive.

Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). Admission to PTI is governed, in general, by both statute, N.J.S.A. 2C:43-12, and court rule. R. 3:28; see Guidelines For Operation of Pretrial Intervention in New Jersey, Pressler, Current N.J. Court Rules, comments on R. 3:28 (2010). The scope of judicial review of a decision to reject a PTI application is "'severely limited,'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), and interference in that decision by the courts is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

The standard to be applied by the courts in reviewing PTI decisions has been referred to as "'enhanced'" or "'extra'" deference. State v. Baynes, 148 N.J. 434, 443 (1997) (quoting Nwobu, supra, 139 N.J. at 246). Moreover, the burden on any defendant who seeks to overturn the denial of a PTI application is particularly weighty. As our Supreme Court has held, a defendant seeking to overcome rejection from PTI must prove by clear and convincing evidence that the decision to reject his or her application was a "'patent and gross abuse of . . . discretion.'" Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246); see State v. Brooks, 175 N.J. 215, 225 (2002).

In applying this test, the Supreme Court has noted that if a rejected defendant can prove that the 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," then an abuse of discretion would "[o]rdinarily . . . be manifest." State v. Bender, 80 N.J. 84, 93 (1979). However, in order to raise that presumption to the level of a "patent and gross" abuse of discretion, the defendant must also prove that his or her rejection from PTI will "clearly subvert the goals" of the PTI program. Ibid. Similarly, our Supreme Court has held that it is appropriate to reverse a decision respecting PTI that is "'contrary to the predominant views of others responsible for the administration of criminal justice,'" Nwobu, supra, 139 N.J. at 253 (quoting State v. Dalglish, 86 N.J. 503, 510 (1981)), such that it is "'clearly unreasonable so as to shock the judicial conscience'" or that it "'could not have reasonably been made upon a weighing of the relevant factors.'" Id. at 254 (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).

Governed by this standard, defendant's PTI rejection was not a patent or gross abuse of discretion. Indeed, his juvenile record of three probation terms and two probation violations alone, would have justified his rejection pursuant to Guideline 3(e). That guideline provides that a defendant, who, irrespective of the degree of the crime, has completed a term of probation within five years prior to the date of a PTI application, should not ordinarily be considered for enrollment, except upon joint application of the defendant and the prosecutor. Here, there was no reason why the prosecutor should have agreed to defendant's PTI application.

There is more, however. Aside from his juvenile record, as an adult, defendant has two separate convictions for disorderly person's offenses and a conviction for violating a city ordinance. His adult record, including the instant drug offense committed in the presence of a juvenile, indicates that juvenile probation has not sufficiently deterred defendant from continuing to violate the law. This record also demonstrates, as found by the PTI Director, that the instant crime for which defendant seeks PTI admission is "part of a continuing pattern of anti-social behavior[,]" justifying rejection of his application. N.J.S.A. 2C:43-12e(8).

Contrary to defendant's contention, we conclude that the motion judge carefully considered defendant's background and individual circumstances, and diligently analyzed all relevant factors in rendering her decision. We discern no error in the motion judge's conclusions and detect no "patent and gross abuse of discretion" in the decision of the Prosecutor to reject defendant from the PTI program.

We similarly find no reason to disturb the imposition of a three-year probationary term, with conditions. Defendant's probationary sentence is in accord with the plea agreement and represents, in our view, a proper weighing of aggravating factors (3), (6), and (9), N.J.S.A. 2C:44-1a(3), (6), and (9), and the mitigating factor of defendant's likelihood of responding "affirmatively to probationary treatment[.]" N.J.S.A. 2C:44-1b(10). We find no other mitigating factors suggested by the record. Defendant's argument that his criminal conduct did not threaten or cause serious harm, N.J.S.A. 2C:44-1b(1) and (2), overlooks the fact that it was committed in the presence of a juvenile passenger in his car. Accordingly, we find no warrant for interference with the sentence imposed.

Affirmed.

The juvenile was charged with an act of delinquency.

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A-3867-07T4