STATE OF NEW JERSEY v. ERIC J. CAPOSELE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2028-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC J. CAPOSELE,

Defendant-Appellant.

_______________________________________

Submitted May 17, 2011 Decided June 8, 2011

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 10-05-0844 and 10-05-0960.

Philip G. Mylod, attorney for appellant.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

The State appeals from an order entered by the Law Division on December 10, 2010, ordering defendant's admission into Pre-Trial Intervention (PTI). We reverse.

On July 8, 2009, an officer of the Seaside Park Police Department observed defendant operating a gold Jeep Cherokee without a seat belt. The officer stopped the vehicle and asked defendant to provide his driver's license, insurance card and vehicle registration. Defendant produced his license and registration but could not produce his insurance card. When defendant opened the center console of this vehicle, the officer observed a clear plastic bag containing psilocybin. Defendant handed the bag to the officer, and the officer asked him to step out of the vehicle.

The officer read defendant his Miranda1 rights. Defendant then consented to a search of the vehicle. Defendant became increasingly nervous and kept walking away. He told the officer there was marijuana next to the console in the vehicle. Defendant signed the consent to search form and walked away back to the vehicle without the officer's permission. The officer grabbed defendant and defendant began to resist.

Defendant was secured, placed in the police vehicle and transported to police headquarters. The officer searched the vehicle and found a green substance, which he believed to be marijuana. The green substance and the psilocybin were transported to the Ocean County Sheriff's laboratory for analysis.

Defendant was charged with possession of psilocybin, contrary to N.J.S.A. 2C:35-10(a)(1), and possession of marijuana, contrary to N.J.S.A. 2C:35-10(a)(4). Defendant also was charged with certain motor vehicle offenses. Bail was set at $15,000, without a ten percent option. See N.J.S.A. 2A:162-12. The defendant posted bail and was released.

About seven months later, on February 1, 2010, at around 3:30 a.m., officers from the Lavallette Police Department responded to Shaded Vision, a store on Grand Central Avenue, after receiving a report of burglary. The officers spoke to the owner, Tyler Mesanko (Mesanko), who indicated that sometime during the night, someone had broken into his store through a rear window. The officers noticed that the window had been broken and completely pulled out of its frame.

The officers also observed a pair of sunglasses lying in the broken glass outside of the window. They notified the Ocean County Sheriff's Department. Inside the store, the officers saw that the cash register and several display cases had been broken into and damaged. Mesanko reported that an entire stock of watches, several pairs of sunglasses, and approximately $200 in cash was missing.

The officers additionally observed footprints outside of the store in the snow. The footprints led from the window of the store to the rear of a nearby restaurant. One of the officers noticed that the restaurant had a security camera. The officers viewed the videotape and identified defendant as the person seen on the tape. They went to defendant's home and he agreed to come to police headquarters to be questioned.

Defendant was informed of his Miranda rights. Defendant then told the officers that he had been at a party and, around 3:00 a.m., walked on the beach. Defendant admitted breaking into the store and said that the items he had stolen were in his home. Defendant was transported to his home, where the officers recovered forty-eight watches, $204 in cash, twenty pairs of sunglasses, three shirts, two hats, two skull caps, a pair of jeans, one X-Box, and one camera. The stolen property was valued at $12,000.

Defendant was charged with burglary, contrary to N.J.S.A. 2C:18-2(a)(1), and theft of movable property, contrary to N.J.S.A. 2C:20-3(a). Bail was set at $15,000, without the ten percent option. Defendant was transported to the Ocean County Jail.

Defendant thereafter filed an application for admission to PTI. The PTI Director recommended defendant's admission to the program, noting his "willingness to comply with all the conditions of PTI and his minimal adult record." Thereafter, the Ocean County Prosecutor rejected defendant's application for admission into PTI.

In a letter dated July 7, 2010, the prosecutor set forth the reasons for the decision. The prosecutor noted that PTI was presumptively unavailable because defendant had been charged with burglary, which is considered a violent offense and therefore, defendant had to show compelling reasons for PTI admission. The prosecutor stated that defendant's admission to PTI was not warranted due to the nature of the charges, and the facts and circumstances of the offenses.

The prosecutor observed that defendant had entered the store through a broken rear window and stolen numerous items of property. The prosecutor additionally noted that defendant had also been charged with possession of controlled dangerous substances (CDS). He was found to be in possession of psilocybin and marijuana. The prosecutor further noted that defendant's offenses were part of a continuing pattern of anti-social behavior.

The prosecutor also pointed out that defendant was twenty-one years old, and he had been using illegal substances since he was twelve years old. Defendant previously had participated in supervised rehabilitation but continued to use illegal narcotics.

The prosecutor stated that defendant's particular drug problem would be better addressed in probation, where his behavior could be strictly monitored. The prosecutor observed that defendant has had nine years to "rid himself of substance abuse" but "continued to engage in these illegal activities."

Defendant filed a motion seeking an order compelling his admission to PTI. The trial court issued a letter dated October 20, 2010, asking the prosecutor to reconsider her decision to deny defendant admission to PTI. The court stated that the prosecutor should explain why defendant's application had been denied when "he has no criminal record" other than the pending charges.

The court also stated that the prosecutor should reconsider her assertion that the burglary had been committed "with violence." The court noted that there was "no evidence of physical violence in this matter" and the only violent action involved was the breaking of a window frame to gain entry into the store.

On November 1, 2010, the prosecutor filed a response to the court's letter. The prosecutor reaffirmed her decision to deny defendant's application for admission to PTI. In her submission, the prosecutor stated that the State was no longer relying upon the fact that defendant had been charged with a crime of violence. The prosecutor stated, however, that defendant should not be admitted to PTI for other reasons.

The trial court filed a written opinion dated December 10, 2010, finding that the prosecutor had committed "an abuse of discretion by exhibiting a clear error of judgment in rejecting the defendant's application to PTI." The court noted that the State had considered defendant's use of illegal drugs and alcohol as part of a pattern of anti-social behavior. The court stated that possession of CDS for personal use cannot alone justify denial of entry into PTI. The court said that the amount of CDS confiscated indicated that defendant possessed the drugs for personal use, rather than for distribution.

The court then addressed the burglary charges. The court wrote that, although the victim of the burglary had objected to defendant's admission to PTI,

the only real obstacle is a matter of restitution by the defendant, who has an admitted, verifiable, and treatable drug dependency, and who has indicated his willingness to absorb the victim's losses as a condition of PTI. The court is satisfied that because the instant matters comprise the fullness of the [twenty-one] year-old defendant's criminal record and his contact with the criminal justice system, the defendant is, in fact, an appropriate candidate for PTI and that his rejection from PTI has subverted the program's goal to rehabilitate defendants who are likely to positively respond to supervisory treatment.

The court entered an order dated December 10, 2010, ordering defendant's admission to PTI. This appeal followed.

The State contends that the trial court erred by ordering defendant's admission into PTI because the prosecutor's determination was not a patent and gross abuse of discretion. We agree.

The decision to admit a defendant into PTI rests "'in the first instance, with the prosecutor,'" and once the prosecutor has determined that a particular defendant should not be admitted to PTI, the prosecutor's "'decision is to be afforded great deference.'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). To secure reversal of a prosecutor's PTI decision, a defendant must "clearly and convincingly establish that the prosecutor's refusal to sanction [his or her] admission into the program was based on a patent and gross abuse of his discretion." State v. Leonardis, 73 N.J. 360, 382 (1977).

"To meet that standard a party must show that the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a 'clear error in judgment.'" Nwobu, supra, 139 N.J. at 247 (quoting State v. Bender, 80 N.J. 84, 93 (1979)). In addition, a defendant may establish that the prosecutor's decision is a patent and gross abuse of discretion if he establishes "'that the prosecutorial error complained of will clearly subvert the goals underlying'" the program. Ibid. (quoting Bender, supra, 80 N.J. at 93).

In her submission of November 1, 2010, the prosecutor pointed out that defendant's first offenses involved the possession of CDS, specifically psilocybin and marijuana. In addition, defendant had been charged with driving while "admittedly high on marijuana." The prosecutor also pointed out that when defendant was out on bail for these CDS-related offenses, he committed the burglary and theft from the Shaded Vision store, which a friend owned. The prosecutor stated that defendant had also admitted he had been "high on" illegal drugs when he committed the burglary.

The prosecutor then addressed the statutory criteria relevant to defendant's request for admission to PTI. The prosecutor first considered the nature of the offenses involved and the facts of those cases. N.J.S.A. 2C:43-12(e)(1) and (2). The prosecutor stated that defendant had admitted that he had been driving a motor vehicle while high on marijuana, thereby "potentially endangering the welfare and safety of other motorists." The prosecutor said that, despite having been charged for possession of CDS and various motor vehicle offenses, "defendant continued to use illegal substances without any [regard] to his pending criminal charges."

The prosecutor also pointed out that defendant's burglary and theft of the Shaded Vision store involved entry with force. When committing those offenses, defendant had broken the cash register and at least four display cases. Defendant had stolen property valued at upwards of $11,672.65. Moreover, defendant was acquainted with the store's owner, Mesanko, who had attempted to help defendant in the past. The prosecutor said she had given "heavy weight" to factors one and two.

The prosecutor also said that she had considered factor four, which is the desire of the complainant or victim with regard to prosecution. N.J.S.A. 2C:43-12(e)(4). The prosecutor noted that Mesanko wanted defendant to be prosecuted "fully" and, moreover, his insurance did not cover all of the damage to his store.

In addition, the prosecutor said that she had considered factor seven, which relates to the needs and interests of the victim and society. N.J.S.A. 2C:43-12(e)(7). The prosecutor stated that there was a public need for prosecution in this case. According to the prosecutor, the burglary and theft affected society directly because of safety concerns and the costs that could be passed on to consumers as a result of burglaries, thefts and similar crimes.

The prosecutor also considered factor eight, which is the extent to which defendant's offense is part of continuing pattern of anti-social behavior, N.J.S.A. 2C:43-12(e)(8), and factor fifteen, which is whether or not defendant's involvement with others or in other crime is such that the State's interest "would be best served" by having the case proceed "through traditional criminal justice system procedures[,]" N.J.S.A. 2C:43-12(e)(15). The prosecutor stated that defendant had been using illegal drugs since he was twelve years old, and this was "precisely the type of anti-social behavior" that factor eight "speaks to."

The prosecutor additionally stated that defendant's "long standing illegal drug habit" involved others "who use, share and sell illegal narcotics." The prosecutor pointed out that defendant attended a substance abuse program for eighteen days, but this did not limit the weight that should be given to factor eight. The prosecutor noted that in the seven months after he was charged with the CDS offenses, defendant did not seek drug treatment. The prosecutor stated that defendant had enrolled in a drug treatment program only after he was charged with burglary and theft.

The prosecutor also took note of several factors that weighed in defendant's favor. Factor nine pertains to whether an applicant has a history of criminal violations and whether defendant may pose a substantial danger to others. N.J.S.A. 2C:43-12(e)(9). The prosecutor stated that defendant had no known prior criminal record. Factor ten requires consideration of whether the crimes involved are of "an assaultive or violent nature[.]" N.J.S.A. 2C:43-12(e)(10). The prosecutor noted that defendant had not been charged with such a crime.

Moreover, factor twelve requires the prosecutor to consider whether the defendant has a record of prior physical violence toward others. N.J.S.A. 2C:43-12(e)(12). The prosecutor stated that defendant had no known history of such conduct. The prosecutor also stated that factor thirteen, which relates to an applicant's involvement with organized crime, did not apply in this case. N.J.S.A. 2C:43-12(e)(13).

We are satisfied that the prosecutor's decision was based on a reasoned consideration of the pertinent factors under N.J.S.A. 2C:43-12(e) and does not rest solely upon the fact that defendant has a long-standing dependency on illegal drugs, as the trial court suggested. Furthermore, the prosecutor reasonably characterized defendant's involvement with the criminal justice system as resulting from a continuing pattern of anti-social behavior, and properly found that the public's interest in prosecution outweighed defendant's interest in admission to PTI.

In its opinion, the trial court found that the prosecutor had relied too heavily on the views of the victim, who wanted defendant to be prosecuted through the traditional criminal justice process instead of being diverted to PTI. However, the prosecutor is required to consider the victim's views on prosecution. N.J.S.A. 2C:43-12(e)(4).

The court also said that defendant had agreed to fully compensate the store owner for all losses not covered by insurance. While this may be so, it does not negate the victim's belief that prosecution is warranted under the circumstances. We are satisfied that the prosecutor did not accord undue weight to the victim's views in this matter.

The trial court also stated found that denying defendant admission to PTI would subvert the goals of PTI. We do not agree. One of the purposes of the PTI program is to

provide defendants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior by the defendant, and when there is an apparent causal connection between the offense charged and the rehabilitative need, without which cause both the alleged offense and the need to prosecute might not have occurred.

[Pressler and Verniero, Current N.J. Court Rules, Guideline 1(a) on R. 3:28 (2011).]

Nevertheless, the determination of whether a defendant should be admitted to PTI must be made based on consideration of all of the relevant factors. Nwobu, supra, 139 N.J. at 247.

Here, the prosecutor weighed all the factors relevant to defendant's admission to PTI and made a reasoned judgment that, because defendant had previously participated in a drug treatment program and it had not deterred him from the criminal conduct at issue here, defendant's entry into PTI for drug rehabilitation would not be an appropriate exercise of prosecutorial discretion.

We are therefore satisfied that the prosecutor reasonably determined that the State's interest is best served by having the case proceed through the traditional criminal justice process, rather than by defendant's admission into the PTI program. We accordingly conclude that the trial court erred by finding the prosecutor's decision was a patent and gross abuse of her discretion.

Reversed and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).