STATE OF NEW JERSEY v. M.S

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1459-10T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

M.S.,

Defendant-Respondent.

_______________________________

October 20, 2011

Submitted September 28, 2011 - Decided

Before Judges Lihotz and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-11-00918.

Robert L. Taylor, Cape May County Prosecutor, attorney for appellant (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the briefs).

Bonnie D. Putterman, attorney for respondent.

PER CURIAM

We review the State's appeal from a Law Division order compelling defendant M.S.'s admission to the pretrial intervention program (PTI). The State objects to diverting defendant and challenges as error the court's finding that the objection failed to consider relevant factors, was based on inappropriate factors, and amounted to a clear error of judgment. State v. Bender, 80 N.J. 84, 93 (1979). We reject these arguments and affirm.

The underlying facts are not disputed. Defendant was the owner and operator of a North Wildwood variety gift store. In May 2009, defendant attended a trade show held at the Atlantic City Convention Center, where he ordered several items from Turkey Creek Trading Company. The merchandise was shipped to defendant's store on July 7 and 8, 2009.

The police received a civilian complaint suggesting defendant's Boardwalk store was selling "inappropriate items." On July 15, 2009, four North Wildwood Police Department officers investigated the complaint. Upon entering defendant's store, the police saw contraband displayed for sale, including several styles of Airsoft rifles and handguns, six expandable batons, seven butterfly knives and fourteen pairs of brass knuckles. The rifles and handguns were designed to look like real weapons, but were actually pneumatic guns that fired small, round, plastic projectiles. Some of the guns were distinguishable from actual weapons by red or orange tips on the end of the barrels; others, however, did not include these tips, giving the appearance of an actual gun.

Defendant, who was not present when the police arrived, was summoned to the store. The police informed defendant the sale of the identified items was prohibited, to which he responded he "did not know it was illegal to sell the expandable batons, brass knuckles or butterfly knives." The officers advised they were seizing the unlawful items. Defendant believed his lawful purchase of the items in New Jersey suggested he could lawfully sell them in his store. Defendant cooperated with police, turning over all of the items requested. Defendant was issued a summons, arrested and thereafter indicted on the weapons-related charges.

Defendant applied for admission into the county PTI program, which was not recommended by Probation Officer Kim Marchelle, principally because of what was characterized as defendant's "continued criminal activities" that displayed "a pattern of anti-social behavior." See N.J.S.A. 2C:43-12(e)(8) (listing an applicant's participation in a supervisory treatment program considers the "extent to which applicant's crime constitutes part of a continuing pattern of anti-social behavior"). Marchelle's position was based on defendant's nine arrests: three for ordinance violations, for which he was convicted, and six for charges that were thereafter dropped.

Defendant requested Marchelle reconsider his PTI admission. When he did not receive a response, he filed a motion seeking to compel admittance.

J. Vincent Molitor, Assistant Prosecutor for Cape May County, adopted Marchelle's recommendation and opposed defendant's motion, submitting a statement of reasons supporting the denial of defendant's PTI application. The prosecutor's initial statement of reasons tracked the statutory factors to be "consider[ed] in formulating the[] recommendation," N.J.S.A. 2C:43-12(e). The State's submission analyzed "[t]he nature of the offense," N.J.S.A. 2C:43-12(e)(1), and "[t]he facts of the case," N.J.S.A. 2C:43-12(e)(2), acknowledging defendant asserted he did not know the sale of the confiscated items was illegal, but concluded "[i]t is more likely the case that [defendant] purposely and regularly profits from the sale of illegal items including prohibited weapons."

In its discussion of "motivation and the age of the defendant," N.J.S.A. 2C:43-12(e)(3), the State noted defendant has a wife and family, commenting:

On the other hand, [defendant] regularly sells counterfeit items, drug paraphernalia, and inherently dangerous weapons for profit. Moreover, [defendant]'s arrest history is troubling. [Defendant] has been arrested for harassment, possession of a controlled dangerous substance, fraudulent use of a credit card, theft by deception, theft by unlawful taking, receiving stolen property, forgery, aggravated assault, robbery, and terroristic threats. On balance then, [defendant]'s personal character does not indicate he is an appropriate candidate for PTI.

In assessing "[t]he likelihood that the [defendant]'s crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment[,]" N.J.S.A. 2C:43-12(e)(6), the State reiterated defendant had "a significant history of arrests" which do not stem from an identifiable condition conducive to change through participation in PTI.

The State conceded there were no identifiable victims, N.J.S.A. 2C:43-12(e)(7), and the alleged crimes were not "of an assaultive or violent nature," N.J.S.A. 2C:43-12(e)(10). Nevertheless, the prosecutor negatively applied these factors claiming a need to protect society by deterring additional offenses and suggesting the weapons defendant sold had "only one purpose," the infliction of "violence against others." Further, the State weighed N.J.S.A. 2C:43-12(e)(8) finding defendant engaged in "a continuing pattern of anti-social behavior" maintaining "there is no question that [defendant] was regularly profiting from the sale of counterfeit items, drug paraphernalia, and illegal weapons."

Turning to defendant's "record of criminal and penal violations and the extent to which he may present a substantial danger to others," N.J.S.A. 2C:43-12(e)(9), the State reiterated its assertion that defendant's criminal record was "troubling." Finally, in assessing "[w]hether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program," N.J.S.A. 2C:43-12(e)(17), the State expressed it was "compelled to send the message that the proliferation of weapons that have no lawful purpose such as brass knuckles and butterfly knives must be addressed in a more serious manner than [PTI]."

After review, the trial judge remanded the matter to the prosecutor for reconsideration. The State filed an expanded statement of reasons, justifying its opposition to defendant's candidacy for PTI. In this supplemental submission, the State acknowledged defendant was a loving husband and father, had "some positive character traits" and "the crimes [he] committed [we]re not the most heinous." Nevertheless, based on its review, the prosecutor would not recommended defendant for participation in the county's PTI program.

First, the State considered the offenses charged as "serious crimes." Further, the State was of the opinion that

[defendant] purchased and sold prohibited weapons on a regular basis . . . [and was engaged i[n] other activities, including selling marijuana cigar wrappers and counterfeit items mak[ing] it unlikely that [he] is as na ve as he claims. It is more likely the case that [defendant] purposely and regularly profits from the sale of illegal items including prohibited weapons.

Also, the State found defendant's "arrest history . . . troubling," proclaiming it is "impossible . . . to believe there is absolutely no substance to any of the numerous charges lodged against [defendant] over the years. Is [defendant] a completely innocent person who has just been very unfortunate? I think not."

Finally, the statement of reasons analyzed the societal benefits of prosecution including: (1) specific deterrence, because defendant's "numerous prior brushes with the law ha[d] not deterred him from attempting to benefit from the sale of items that have one purpose, injuring other people"; and (2) general deterrence, to "send the message that the proliferation of weapons that have no lawful purpose . . . must be addressed in a more serious manner than [PTI]."

After considering the positions of the parties, the trial judge rendered an oral opinion. The court determined the State's denial was based on irrelevant and inappropriate factors along with "inferences" unsupported by sufficient evidence. The trial court concluded the denial of defendant's PTI application was "a clear error in judgment" and granted defendant's motion to compel his admission. This appeal ensued. R. 2:2-3(a).

PTI is "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). "The purposes, goals, and considerations relevant to PTI are found at N.J.S.A. 2C:43-12, and in Rule 3:28." State v. Brooks, 175 N.J. 215, 223 (2002). The Supreme Court formally adopted Guidelines For Operation of Pretrial Intervention in New Jersey (Guidelines) on September 8, 1976. Pressler & Verniero, Current N.J. Court Rules, comments on R. 3:28 (2012). The Guidelines are not mandatory. State v. Leonardis (Leonardis I), 71 N.J. 85, 111 (1976). Rather, they embody the considerations delineated in N.J.S.A. 2C:43-12(e). Brooks, supra, 175 N.J. at 224.

A prosecutor's review of an offender's application for PTI must be informed by certain principles. First, "PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." State v. Nwobu, 139 N.J. 236, 255 (1995) (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). See also N.J.S.A. 2C:43-12(b) ("Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense."). Second, the State's determination, grounded on the specific facts presented, must be guided by the relevant factors set forth in the statute, N.J.S.A. 2C:43-12(e), and described in the Guidelines accompanying Rule 3:28. Pressler, supra, Current N.J. Court Rules, comments on R. 3: 28 Guideline 3.

Generally, the scope of a trial court's review of the State's decision to reject a PTI application is "'severely limited,'" Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), as the initial decision to accept or reject a defendant's PTI application lies within the scope of the prosecutor's discretion in selecting "whom to prosecute and whom to divert to an alternative program, such as PTI." State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Leonardis (Leonardis II), 73 N.J. 360, 381 (1977)). This decision is entitled to considerable deference. Id. at 582-83; State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" Kraft, supra, 265 N.J. Super. at 111 (quoting DeMarco, supra, 107 N.J. at 566; State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)).

"Against this backdrop, it is quite clear that 'a trial [court] does not have the authority in PTI matters to substitute [its own] discretion for that of the prosecutor.'" Id. at 112 (alterations in original) (quoting State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980)). This applies even where the trial court disagrees with the prosecutor's decision, or finds it to be harsh. See DeMarco, supra, 107 N.J. at 567. Judicial interference must be reserved only for those cases where it is necessary to correct "the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting Leonardis II, supra, 73 N.J. at 384).

Even so, a prosecutor's discretion in such a matter is not "unbridled." Wallace, supra, 146 N.J. at 582. A defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [PTI] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382.

If a rejected defendant can prove the State'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," then an abuse of discretion would "[o]rdinarily . . . be manifest." Bender, supra, 80 N.J. at 93. Thus, the State's decision must be "'clearly unreasonable so as to shock the judicial conscience'" or "'could not have reasonably been made upon a weighing of the relevant factors.'" Nwobu, supra, 139 N.J. at 254 (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).

Finally, in our review, we owe no special deference to a trial court's decision to compel PTI admission over the State's objection. See State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006); State v. Maddocks, 80 N.J. 98, 105 (1979) (holding "an appellate court is free to substitute its independent judgment for that of the trial court or the prosecutor should it deem either to have been in error").

With these principles in mind, we undertake our de novo review of this question of law, Nwobu, supra, 139 N.J. at 247, examining the State's challenges to the trial court's scrutiny of its proffered justification rejecting diversion. Dalglish, supra, 86 N.J. at 509.

In denying PTI admission, the State argues it reasonably exercised its discretion by considering only relevant factors. The State repudiates the trial court's conclusion that the State's objection to admission was bottomed on impermissible consideration of defendant's prior criminal record and regular criminal conduct. We disagree.

Emphasizing past arrests, the assertion of defendant's "troubling" criminal history is threaded throughout the State's reasoning. The repeated contention is reflected in statements, including: defendant "has a significant history of arrests"; defendant's "arrest history [wa]s troubling"; defendant "has violated the law several times. [Defendant] been accused of violent and non-violent crimes"; defendant's "numerous prior brushes with the law ha[d] not deterred him"; and "[defendant]'s criminal record is troubling." The State also concluded defendant "poses a risk of danger to others," based on past violent conduct towards others and, therefore, was not a candidate for PTI.

We determine these statements mischaracterized the evidence. Although defendant was arrested several times on varied criminal charges in 1994, 1999 and 2000, all indictable offenses were dismissed, leaving only municipal convictions for fighting, an alcohol offense, and an ordinance violation for obstruction of a sidewalk.

In Brooks, supra, the Supreme Court permitted prosecutors to "draw only limited inferences" from a PTI applicant's history of dismissed charges. 175 N.J. at 219. "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." Id. at 229. Further, the Court noted prior arrests "may be so minor or distant in that they provide no reasonable basis on which to reject an otherwise meritorious PTI application." Id. at 230.

Upon remand, the trial court specifically identified the need for the prosecutor to clarify its position in rejecting defendant's PTI request. Giving only a gratuitous nod to the Court's instructions in Brooks, the State proceeded to disregard the cautionary advice to prosecutors that they may not "infer guilt in respect of any dismissed charge or count[,]" id. at 229, stating in its supplemental submission:

The fact that many of these charges were dismissed does militate against the use of [defendant's] arrest record to oppose [his] application for PTI, but anyone associated with the criminal justice system understands that dismissals occur for a host of reasons other than innocence. It is difficult, indeed, impossible, for the State of New Jersey to believe there is absolutely no substance to any of the numerous charges lodged against [defendant] over the years. Is [defendant] a completely innocent person who has just been very unfortunate? I think not.

Such an unfounded and unfair conclusion smacks of "a patent and gross abuse of [] discretion." Leonardis II, supra, 73 N.J. at 382.

Additionally, the State's first submission denied PTI by inferring defendant was engaged in the business of buying and selling contraband. The prosecutor made these assertions:

[defendant] regularly sells counterfeit items, drug paraphernalia, and inherently dangerous weapons for profit. Moreover, there is no question that [defendant] was regularly profiting from the sale of counterfeit items, drug paraphernalia, and illegal weapons.

. . . .

As previously stated, there is no question that [defendant] was regularly profiting from the sale of counterfeit items, drug paraphernalia, and illegal weapons. [Defendant] appears to have been committing crimes on a daily basis.

Challenged by the trial court, the State's supplemental statement expanded its rationale as follows:

One would have to be na ve to think that the first time [defendant] bought or sold prohibited weapons was July 9, 2009, as asserted in [his] brief, especially since prior to July 15, 2009, [he] did not believe the purchase or sale of such items would subject him to prosecution.

. . . .

[Defendant]'s other activities, including selling marijuana cigar wrappers and counterfeit items make it unlikely that [he] is as na ve as he claims. It is more likely the case that [Defendant] purposely and regularly profits from the sale of illegal items including prohibited weapons.

. . . .

The State is of the opinion that [Defendant] purchased and sold prohibited weapons on a regular basis. [He] admits he attended shows where such weapons were openly advertised and sold. [He] concedes that he had an interest in purchasing and selling such items.

Following our review, we find these propositions untethered to the facts. The only evidence produced included two invoices of illicit items ordered in May 2009, and shipped to defendant on July 7 and 8, 2009. The items were seized from the store on July 15, 2009. During oral argument, the State admitted there was no evidence to show defendant was "in this business" of regularly selling and profiting from contraband, conceding:

in terms of the duration of how long these items were sold all we know really from the police reports is that on July 15th these items were seized. . . . I don't have a real time frame that I can definitively say how long these had been on sale for, what length of time.

At best, the evidence of a single transaction may possibly demonstrate "anti-social behavior," but that fact falls short of constituting "a continuing pattern." N.J.S.A. 2C:43-12(e)(8).

The State's unsupported expansive view of the evidence allegedly suggesting repetitive criminal behavior reflects an unreasonable reliance on inappropriate factors. Consequently, the State's denial of PTI could not have reasonably been made by weighing only relevant factors, making it a gross abuse of discretion. Bender, supra, 80 N.J. at 93.

Based on our conclusions, we need not discuss whether the trial court erred by suggesting the State failed to consider relevant factors in making its decision. We note only that the prosecutor made brief mention of defendant's family status, his cooperation upon learning the sale of the items was criminal, the nonviolent nature of the charged offenses, the lack of a victim of these crimes, and the fact that defendant's past charges were dismissed, without discussing whether such facts supported defendant's diversion to supervisory treatment. Performing this analysis is integral to discerning a defendant's suitability for PTI admission.