STATE OF NEW JERSEY v. M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4217-08T34172-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.D.,

Defendant-Appellant.

_________________________________________________

 

Argued April 21, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

07-07-1109.

Robert A. Vort argued the cause for

appellant (Vort & Morgen, LLC, attorneys;

Mr. Vort, on the brief).

Steven J. Harbace, Assistant Prosecutor,

argued the cause for respondent (Edward

J. DeFazio, Hudson County Prosecutor,

attorney; Mr. Harbace, on the brief).

PER CURIAM

Defendant, M.D., appeals from a denial of his motion for admission to Hudson County's pretrial intervention (PTI) program over the prosecutor's objection, arguing that the prosecutor patently and grossly abused his discretion in rejecting defendant's application and that the prosecutor did not consider several statutory factors that were relevant to his decision.

I.

The record discloses that, on May 12, 2007, defendant, the stepfather of an eleven-year-old boy, ordered the child to remain in the bedroom that he shared with his baby half-brother while the stepfather and the child's mother quit the apartment with the baby to do the laundry, leaving the child alone in the residence. The stepfather placed two strips of scotch tape over the door so he would know if the child left the room while the parents were away. Additionally, to avoid child care expense on school mornings, the child was left at a Dunkin' Donuts at 7:45, where he remained unattended by his parents until 8:10, at which time the boy walked the short distance to school. Following school, the child was instructed to go to the local library to complete his homework and to go home when his parents had returned from work. The boy, instead, often played with friends.

The parents' landlady overheard that the child was to be left alone for a period of time on May 12 and reported the matter to the police, stating additionally that the parents taped the door shut and provided the eleven-year-old with diapers if he needed to relieve himself. She also expressed concerns regarding the child's weight and speculated that he was not being properly fed.

A police officer responded to the residence. After persuading the child to open the door, he confirmed that the boy was, in fact, alone. The boy stated that he had been confined to his room as punishment for leaving the library. The officer observed diapers in the bedroom, which the child stated had been given to him in case he had to relieve himself.

The child was then taken by the police to the local police station, where he was interviewed. During the course of the interview, the boy showed the police a bruise on his lower back that he said was the result of being hit with a belt by defendant. In response to police questioning, the child stated that he was fed only one slice of bread three times a day.

A further police interview was conducted on May 16, 2007. On that day, the child stated that defendant had been angry with him for the past few months, and that he was routinely punished by being forced to stare at the ceiling for hours at a time until his neck hurt. The child also stated that he was forced by defendant to remain at the Dunkin' Donuts so that defendant would not have to see his face, and that he was left there for approximately one hour a day. Although the child initially denied being hit by defendant, he later detailed three incidents: once, when he was punched just below the rib cage; once, when he was smacked across the face; and once, when he was struck on the knuckles with a "whirly."

The child and his baby brother were removed by the Division of Youth and Family Services (DYFS) from their parents' custody on an emergency basis and placed in foster care. N.J.S.A. 9:6-8.29. Both children were initially placed with their maternal uncle and his family. However, discord developed between the older child and his cousin and, for that and other reasons, both children were removed from the uncle's and aunt's care. The baby was placed with his paternal grandmother in Massachusetts; the older boy was placed with the parents of his mother's former boyfriend, John.

Later interviews by psychologist Charles S. Hasson with the defendant, his wife, and the child suggest that the substance of some of the child's statements to the police was inaccurate or exaggerated. For instance, the diapers were present in the bedroom because the child's eighteen-month-old step-brother slept there, and they would never have fit an eleven-year-old. There was no substantiation of charges that the child was underfed, and the one time that the child had been hit with a belt resulted from conduct by his mother, not defendant. Additionally, the child had a motive to cast defendant in an unfavorable light, since the child regarded him as breaking up the long-term relationship between his mother and John, to whom the child had bonded, and thwarting contact between the child and John that would have otherwise occurred. Frequent contact between the child and John resumed as the result of the child's second foster placement.

Defendant was charged with child abuse in a Title Nine action, which was tried over a two-day period in late June 2007. At the conclusion of the fact-finding trial, the Family Part judge found child abuse or neglect to have occurred, but that "[t]here was no proof in this case that [the child] has been substantially harmed in any definition of that word." The parties have included only a single page of the record of that proceeding, and we therefore do not know who testified, the substance of the testimony offered, or other aspects of the judge's decision. On appeal, defendant has stated, and the State has not denied, that a representative of the Hudson County Prosecutor's Office was present throughout the trial.

On July 3, 2007, a Hudson County Grand Jury handed down an indictment against defendant charging him with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and with child abuse, N.J.S.A. 9:6-1 and 9:6-3, a fourth-degree offense.

At some point, defendant and his wife moved to Massachusetts and took up residence near defendant's mother, who had custody of the couple's baby. Liberal visitation with the baby was allowed and took place on a daily basis. During this period, the couple also had an additional child, a daughter, who remained in their custody. Upon the urging of DYFS, its Massachusetts equivalent conducted an assessment of the risk posed to the baby daughter if she remained in her parents' custody, and the agency found none.

Also, during the period that the criminal charges were pending, an order in the Title Nine action regarding the custody of the baby boy was appealed. We have not been informed of the substance of that order. However, the record contains the written opinion of Judge Mark Nelson, dated June 16, 2008, following remand of the case for factfinding as to whether that baby should remain in foster care with his grandmother or be returned to the custody of defendant and the child's mother. In the course of his opinion, Judge Nelson noted that we had affirmed the emergency removal of the two children by DYFS. However, we found that DYFS had presented no evidence that the baby boy had been abused or neglected in any way, or that he was old enough to observe and be affected by his parents' neglectful treatment of his older step-brother. As a consequence, Judge Nelson confined his analysis to whether the parents were likely to cause injury to the younger child in the future a matter that the judge characterized as determined through a battle of the experts. In determining the result of that battle, Judge Nelson credited the testimony of the parents' expert, Dr. Hasson, while discrediting the testimony and the diagnostic procedures utilized by the expert for the State, Dr. Daniel Bromberg. The judge found: "Throughout his testimony, Dr. Hasson indicated that Dr. Bromberg, while well qualified, has 'cherry picked' the information 'to fit his conclusion' that [the baby boy] could be at risk if returned to his parents. The court agrees with Dr. Hasson." Additionally, the judge noted that "even when presented with changes that have occurred since the abuse to [the older boy] and changes that Dr. Bromberg indicated were positive, he refused to even consider that [the parents] had changed in any way. The court finds this opinion not credible." Among those changes was the parents' move to Massachusetts where family support was available; their admission that they had made poor parenting decisions with respect to the older child; defendant's return to school; the engagement of both parents in parenting classes; and defendant's participation in psychotherapy involving two professionals and his work with a third therapist.

Finding that DYFS had not met its burden of proving by a preponderance of the evidence that the baby boy was an abused or neglected child or in the future would be subject to the risk of such treatment, the judge determined that the baby should not remain in foster care and should be returned to his parents.

Thereafter, defendant and his wife agreed not to seek custody of the oldest child, who was then living with John, who served as the child's guardian with the permission of DYFS.

On August 11, 2008, a plea agreement was reached between the State and defendant. The State agreed to drop Count One of the indictment, charging second-degree endangering the welfare of a child, and defendant agreed to plead guilty to the fourth-degree Title Nine charge of abuse or neglect in exchange for a non-custodial sentence and an opportunity to apply for PTI, without any guarantees as to the outcome of that application. As a factual basis for the plea, defendant admitted that, when his step-son was eleven years of age, he was left alone in the residence while defendant and his wife did the laundry. Additionally, defendant admitted that there were occasions when, in the morning, the child was brought to a Dunkin' Donuts, and was left alone there with a cup of hot chocolate. He also admitted that this conduct placed the child at risk. No other admissions were made.

Defendant's application for PTI was supported by the Probation Department, which stated in a Case Analysis dated October 1, 2008 that defendant had accepted his guilt and expressed "extreme remorse" for his actions. The probation officer continued:

The defendant further expresses that his behavior was caused by a lack of skill and experience in the area of fatherhood and exercising structure, limitation and punishment on his step-son. The defendant does not present a pattern of anti-social/criminal/violent behavior, nor does he appear to be involved in organized crime. This officer is of the opinion that the defendant would benefit from the type of supervisor offered through PTI. To his benefit, the defendant has proactively enrolled and completed a seven (7) week parenting class. This officer recommends the defendant for PTI.

Additionally the PTI Program Director indicated that defendant was an acceptable applicant and was prepared to admit him to the program. Nonetheless, PTI was denied in a letter from the First Assistant Prosecutor dated October 7, 2008. The letter of denial stated merely:

All of the facts of the defendant's case have been reviewed. It is this office's opinion that she [sic] should be rejected from the Pre-Trial Intervention Program due to the following:

The nature of the offense.

Society's need to prosecute cases involving emotional violence against children outweighs the benefits of diversion to this defendant.

The judge before whom the matter was pending found this statement of reasons to be "insufficient and incomplete" under the guidelines set forth in N.J.S.A. 2C:43-12e and he returned the matter to the Prosecutor's Office for a fuller explanation of the reasons for denial.

That response came in a letter dated January 29, 2009. In that letter, the First Assistant Prosecutor set forth at great length the facts as alleged by the child, the fact of defendant's indictment, and the circumstances of his plea. The prosecutor noted the following circumstances as the reason for the dismissal of the second-degree charges:

The defendant and DYFS had been engaged in a lengthy custody hearing and it seemed that the Family Court, specifically Judge Nelson, was ready to take [the older child] from his current placement and place him back with the defendant. Once it was learned that the defendant was willingly giving up custody the State was willing to offer the 4th degree.

The prosecutor concluded his letter by stating:

In this case, it is clear to the State that the defendant disciplined this child in a way which was emotionally abusive to the child. By locking the child into his room, taping the door closed and leaving an eleven year old diapers into which he was to relieve himself, the defendant treated the child as if he were an animal. In fact, the State would submit, most pets are treated with more kindness than the defendant treated his stepson. Only time will tell how much damage was done to this boy. Society needs to prosecute defendants who act in this way.

The defendant has demonstrated no idiosyncrasy to qualify him for admission as a person charged with a second degree crime. His behavior needs to be prosecuted. The State reiterates the decision to reject his application for admission.

Defendant appealed the prosecutor's decision to the trial judge, who affirmed it. In doing so, the judge noted that the prosecutor had included the child's allegations of mistreatment in his letter of rejection, defendant had objected to that inclusion, and as a result the facts asserted remained "as 'alleged.'" Nonetheless, the judge found that "[i]f the defendant wished to challenge those facts, he could have done so at trial. He opted not to do that." The judge then found that the indictment stood as proof, at very least, of probable cause to support the second-degree charges. Further, the judge found: "Nor does the fact that the prosecutor offered a negotiated plea to the defendant prevent the prosecutor from asserting as fact that which is contained in his file." He found that the prosecutor's consideration of the facts was not limited to defendant's admissions when the plea was taken.

After considering various other objections by the defendant, the judge found that the prosecutor had not acted arbitrarily or capriciously in rejecting defendant's application and that he had not failed to consider any relevant factors. The motion for admission to PTI over the prosecutor's objection was thus denied.

On March 27, 2009, defendant was sentenced to one year of probation. This appeal followed.

II.

The considerations relevant to an evaluation of a candidates eligibility for PTI, together with the purposes and goals of that program are set forth in N.J.S.A. 2C:43-12 and at Rule 3:28 in its Guidelines. While one purpose of PTI is "to augment the options of prosecutors in disposing of criminal matters," State v. Brooks, 175 N.J. 215, 223 (2002) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)), another important purpose is to provide applicants "with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant." N.J.S.A. 2C:43-12a(1).

To seek admission to PTI, a defendant must apply to the count's criminal division manager or program director. R. 3:28(h). Although such application must be filed no later than twenty-eight days after indictment, ibid., in this case, that time limitation was waived, and defendant was permitted to apply after he had pled guilty to the Title Nine offense. The director and prosecutor evaluate an application according to the Guidelines set forth in Rule 3:28 and the seventeen statutory factors enumerated in N.J.S.A. 2C:43-12e.

Admission to PTI is generally limited to persons "who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state[.]" N.J.S.A. 2C:43-12a. Defendant meets that qualification. Additionally, Rule 3:28, Guideline 3(1) provides a rebuttable presumption against admission to PTI for persons charged with first- or second-degree crimes:

A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable.

See also Nwobu, supra, 139 N.J. at 252 (holding that for a defendant charged with a first- or second-degree crime "[t]o forestall imprisonment a defendant must demonstrate something extraordinary or unusual, something idiosyncratic in his or her background.") The second-degree charges against defendant were dismissed prior to his application for PTI, and his sentence on the fourth-degree charge was to probation.

Significantly, the Court "has warned that conditioning a defendant's admission to PTI solely on the nature of his or her offense 'may be both arbitrary and illogical' and that '[g]reater emphasis should be placed on the offender than on the offense.'" Brooks, supra, 175 N.J. at 224-25 (citing State v. Leonardis, 71 N.J. 85, 102 (1976)).

The courts must extend enhanced deference to a prosecutor's decision with respect to admission to PTI. Nwobu, supra, 139 N.J. at 246. To challenge a prosecutor's decision successfully, a defendant must prove by clear and convincing evidence that the prosecutor's decision was a "patent and gross abuse of his discretion." State v. Leonardis, 73 N.J. 360, 382 (1977) (Leonardis II). To do so, the defendant must demonstrate 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." State v. Bender, 80 N.J. 84, 93 (1979). Additionally, the defendant must demonstrate "that the prosecutorial error complained of will clearly subvert the goals underlying [PTI]." Ibid. Thus, while not unbridled, a prosecutor's discretion will rarely be overturned. Brooks, supra, 175 N.J. 225 (quoting State v. Wallace, 146 N.J. 576, 585 (1996) (quoting Leonardis II, supra, 73 N.J. at 380)).

III.

In the present appeal, defendant argues that the prosecutor improperly considered facts as recorded in the police reports that formed the basis for the second-degree charge against defendant of child endangerment that was dismissed prior to defendant's plea. A similar issue arose in Brooks. In that case, the police conducted a traffic stop of defendant, a bail bondsman and private investigator. During the course of that stop, he was found to be carrying a loaded and unsecured .380 9mm handgun in his car. Additionally, the remains of a marijuana cigar were discovered, along with an open can of beer. Defendant was charged with unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b, and possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:33-10a(4). He was also issued a summons for speeding and for driving with an open container of alcohol in his car. Id. at 220. The defendant sought PTI, which was denied. The prosecutor noted that defendant's juvenile history included five arrests between 1987 and 1988 on various charges including receipt of stolen property, truancy, burglary, and theft, which were eventually dismissed. Additionally, his juvenile history disclosed the imposition of two probationary terms. The first stemmed from charges of eluding, possession of a stolen vehicle, and motor vehicle theft. The second was for trespass. As an adult, defendant had been arrested on two occasions, one of which involved possession of a weapon. However, all charges had been dismissed. Id. at 222. Following denial of PTI, defendant entered into a plea agreement pursuant to which he pled guilty to the handgun charge, and the prosecutor dropped the drug possession and open-container charges. The right to appeal the denial of PTI was preserved. Id. at 222.

An issue on appeal was the extent to which the prosecutor could consider the dismissed charges stemming from prior arrests in denying PTI. With respect to those charges, the Supreme Court held that it was proper for the prosecutor to consider those charges in the same fashion as a trial judge would when considering a record of arrests when sentencing a defendant. Id. at 228-29. Nonetheless, the Court limited the consideration given to such charges, holding:

Under no circumstances may a court, prosecutor, or PTI director infer guilt in respect of any dismissed charge or count of an indictment contained in an applicant's record. Those aspects of a defendant's history, if considered at all, may be reviewed solely from the perspective of whether the arrest or dismissed charge should have deterred the defendant from committing a subsequent offense. Moreover, a prosecutor's or program director's written rejection of a given application must reflect only a proper consideration of such information.

[Id. at 229.]

Although defendant relies on this language in support of his position, as the State points out, it is inapplicable, because defendant had no prior record, and there was no evidence from which to draw an inference as to whether prior arrests had operated to deter defendant from future criminal conduct.

However, in evaluating the denial of PTI, the Court also addressed the charges filed against defendant in the matter on appeal and the extent to which the dismissed charges could be considered. This analysis directly bears upon the present matter. The Court held:

The facts surrounding the gun, drug, and open-container charges formed an adequate basis to support the prosecutor's decision when considered in concert with other relevant factors found under the statue and Guidelines. In that respect, we note that in evaluating an application a prosecutor or PTI director is not limited to the offenses formally contained in a plea agreement. In that connection, those officials "may look beyond the plea to the actual facts when they are not in dispute, as it is the conduct not the charge [that] governs.

[Id. at 230 (quoting State v. Imbriani, 280 N.J. Super. 304, 316 (Law Div. 1994), aff'd, 291 N.J. Super. 171 (App. Div. 1996)) (emphasis supplied).]

In Brooks, defendant did not contest his ownership of the marijuana or the open container of beer. In contrast, in the present matter, defendant admitted only to leaving his step-child alone in his room and unattended at the Dunkin' Donuts. The remaining "facts" supporting the dismissed second-degree charge, set forth in an unwarrantedly inflammatory manner in the prosecutor's January 2008 letter, were, as the trial judge recognized, simply allegations. Moreover, as the report of Dr. Hasson, the psychologist that Judge Nelson found to be credible, reveals, significant grounds to challenge the veracity and accuracy of those facts as alleged by the child exist. It was improper for the prosecutor to rely on those allegations as a basis for his decision, and it was likewise improper for the trial judge to regard those untested allegations as a sufficient foundation for the prosecutor's determination to deny PTI.

When those allegations are removed, we are left with a defendant who misguidedly left his step-child home alone as punishment and who dropped the child off at a Dunkin' Donuts to await school so as to save childcare expense. Balanced against that is defendant's acknowledgement of fault, his remorse, and his attempts at corrective action, including attendance at parenting classes, psychotherapy and psychological counseling. Additionally, we note as positive factors defendant's decision to move near his mother, a practicing psychologist, in Massachusetts; defendant's daily, prolonged visitation with his baby boy while the child remained in defendant's mother's custody; and defendant's efforts to better his family's economic circumstances by obtaining post-high school education. The fact that defendant and his wife have been found to be no risk to their two younger children also provides significant evidence of the success of defendant's rehabilitative efforts.

In the circumstances presented, and after consideration of defendant's the admitted details of defendant's conduct and rehabilitative efforts in light of the factors set forth in N.J.S.A. 2C:43-12 and the Guidelines set forth in Rule 3:28, we find that defendant has provided clear and convincing evidence that the prosecutor's reliance on the nature of defendant's offense, N.J.S.A. 2C:43-12e(1), and the fact that the harm that would be done to society by abandoning criminal prosecution outweighed the benefits to society from channeling defendant into a supervisory treatment program, N.J.S.A. 2C:43-12e(17), as the sole factors preventing defendant's admission into PTI to have been unwarranted. We reach this conclusion because we find that the prosecutor's decision was not premised on a consideration of all relevant factors, was based upon his consideration of irrelevant and inappropriate factors, and constituted a clear error in judgment. Bender, supra, 80 N.J. at 93. We further find that the trial judge's acceptance of those reasons as a sufficient foundation for a determination not to overrule the prosecutor's decision and to admit defendant into PTI to have been a patent and gross abuse of his discretion that subverted the rehabilitative goals of PTI. Leonardis, 73 N.J. at 382; Bender, supra, 80 N.J. at 93. We thus reverse and remand the matter to permit defendant's entry into PTI.

Reversed and remanded.

 

The extract from the judge's opinion contained in the record does not contain the judge's finding on this issue.

Defendant's mother is a licensed psychologist.

There is no evidence that DYFS offered services to these parents. Their rehabilitative efforts appear to have been entirely self-motivated.

(continued)

(continued)

4

A-4172-08T3

RECORD IMPOUNDED

August 2, 2010