STATE OF NEW JERSEY v. ALEXANDRIA R. DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1753-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXANDRIA R. DAVIS,

Defendant-Appellant.

__________________________

September 29, 2011

Submitted September 20, 2011 - Decided

Before Judges Reisner and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-09-1751.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel).

PER CURIAM

The State charged defendant Alexandria Davis with two counts of third-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a), and resisting arrest, N.J.S.A. 2C:29-2a(3). The charges stemmed from defendant's assault on and injury to two police officers. The State also charged defendant with contempt for violating a restraining order, a disorderly persons offense, N.J.S.A. 2C:29-9b.

Defendant applied for admission to the Monmouth County Pre-Trial Intervention Program (PTI). The Criminal Case Manager recommended that defendant be admitted to the program. The prosecutor issued a written decision denying the application. The prosecutor cited the facts of the case, N.J.S.A. 2C:43-12e(2), defendant's motivation, N.J.S.A. 2C:43-12e(3), and the assaultive or violent nature of the criminal act or its injurious consequences, N.J.S.A. 2C:43-12e(10), as reasons for the denial. With regard to the facts of the case, the prosecutor explained as follows:

The facts of this case show that the defendant violently assaulted two police officers and attempted to bite another and strike another. The police were at the scene performing their duty when the defendant became uncooperative, totally unruly and began using obscenities at the officers. It took approximately four officers to gain control of the defendant. The defendant bit one officer in the leg and caused a laceration to the face of another officer. The defendant left these officers injured. The other officers involved were also struck or attempted to be struck at and bitten by the defendant. According to Guideline 3(i) if the crime was committed with violence or a threat of violence against another then the defendant's application should generally be rejected.

Defendant appealed the prosecutor's decision to the Law Division. Judge Ronald Reisner denied the appeal, finding there was no abuse of discretion or misapplication of the law, and no compelling reason warranting admission into PTI.

Defendant then entered a conditional guilty plea to one count of aggravated assault in exchange for the State's agreement to dismiss the remaining charges and recommend a term of non-custodial probation. Judge Kreizman sentenced defendant to an eighteen-month term of probation, and imposed the appropriate assessments, fines and penalties. This appeal followed.

On appeal, defendant raises the following argument:

POINT I - BECAUSE THE PROSECUTOR'S REJECTION OF DEFENDANT'S APPLICATION FOR PRE-TRIAL INTERVENTION REPRESENTED A CLEAR ERROR OF JUDGMENT, DEFENDANT'S ADMISSION SHOULD HAVE BEEN ORDERED DESPITE THE PROSECUTOR'S OBJECTION. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

We have considered this argument in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Reisner in his well-reasoned oral opinion rendered on March 3, 2010. However, we make the following brief comments.

A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008) (citing State v. Nwobu, 139 N.J. 236, 246-47 (1995)). In order to overturn a prosecutor's rejection, a defendant must "'clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion.'" State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff d, 193 N.J. 507 (2008)); see also State v. Negran, 178 N.J. 73, 82 (2003); State v. Brooks, 175 N.J. 215, 225 (2002). Here, there is no evidence, let alone clear and convincing evidence, of a patent and gross abuse of discretion.