STATE OF NEW JERSEY v. ANDRE L. GOODE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2402-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE L. GOODE,

Defendant-Appellant.

___________________________________

March 20, 2012

Submitted March 7, 2012 - Decided

Before Judges J. N. Harris and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-03-00213.

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

Camelia M.Valdes, PassaicCounty Prosecutor, attorneyfor respondent(Christopher W. Hsieh, of counsel and on the brief).

PER CURIAM

Defendant Andre L. Goode was convicted of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a), after pleading guilty to a one-count accusation. As part of his plea arrangement, Goode was permitted to apply for admission into the Pretrial Intervention Program (PTI) under Rule 3:28. The PTI Director denied the application because of the offense's violent nature. The Passaic County Prosecutor supported this determination, and on Goode's motion to be admitted into PTI the Law Division upheld the denial. Thereafter, Goode was sentenced to a one-year term of probation. Goode appeals from the August 23, 2010 judgment of conviction,1 asserting that he was improperly denied admission to PTI. We affirm.

I.

We gather the facts from Goode's plea allocution, the accusation, and the PTI application. On January 22, 2010, Goode became involved in a heated argument with a female acquaintance in Prospect Park. Police officers were dispatched to a location on Haledon Avenue after a 9-1-1 caller hung up. At the scene, the police heard loud voices coming from a third-floor apartment and proceeded to investigate.

As Goode descended the stairs to leave the dwelling, the police detained him, asking for identification. According to the PTI application,

After numerous requests [were] made by officers for Mr. Goode's ID[,] he then stated "I don't have to give you my name or my fucking ID." The officers then advised Mr. Goode that if he did not turn his ID over that he would be arrested. Mr. Goode began to yell obscenities at the officer and up the stairs . . . . Officers attempted to take Mr. Goode into custody, at which time he punched [a sergeant] in the left eye with a closed fist, knocking [the sergeant's] glasses off his face destroying them. Mr. Goode also kicked and attempted to strike the officer for a second time while ripping his uniform shirt off and grabbing and destroying the officer's radio while he was attempting to call for assistance. Subsequently, Mr. Goode was placed under arrest.

A few weeks later, Goode was offered a plea arrangement. In exchange for pleading guilty, he was (1) released on his own recognizance and (2) permitted to enter PTI if approved by the PTI Director.2 If not accepted by the PTI Director, he was to receive a probationary, noncustodial sentence.

On March 25, 2010, Goode's application for PTI was denied. The reasons endorsed by the PTI Director were all related to the violent nature of the offense:

Due to the nature of this offense, it is required that this matter be placed within the scope of Supreme Court Guideline 3I and persons charged with [an] offense of this nature must present compelling reasons to over-ride these guideline restrictions.

It is the opinion of this officer that the defendant did not offer sufficient reasons to over-ride the exclusionary clause of this guideline, such as the defendant stated that he was highly intoxicated and that a lot was going on in his life on the day of the instant offense.

Goode appealed to the Law Division. On June 18, 2010, Judge Ernest M. Caposela issued a five-page written opinion concluding that "this court is satisfied that the State's objection to [d]efendant's entry into the PTI program was not arbitrary and capricious and did not amount to a gross abuse of discretion." Judge Caposela reviewed the applicable legal principles and outlined the nature of his scope of review. He noted the following:

It is critical that citizens comply with demands of the police, even if they believe the demands are unlawful. There are legal remedies for unlawful stops and arrests of citizens, and that is the appropriate venue to challenge alleged wrongdoing or procedural errors by law enforcement. The Defendant in this matter became aggressive when the police asked him for identification, and went so far as to strike an arresting officer with a closed fist. The willful disobeying of the police by the Defendant leads this court to believe that the Defendant does not possess "amenability to correction" and potential "responsiveness to rehabilitation," N.J.S.A. 2C:43-12(b)[;] his actions demonstrate his unwillingness to make effort to effect behavioral change and show that future criminal behavior will not occur.

Additionally, Judge Caposela noted that defendant's conduct required

more police officers having to respond to the scene of the incident for back up. The additional police presence required decreases [in] the police presence in the community at large, so the Defendant's actions put not only himself and the officer he struck in danger, but presented a risk by diminishing the police presence in the community.

On August 6, 2010, employing the PTI materials rather than a formal Adult Presentence Investigation Report, Judge Caposela sentenced Goode to a probationary term of one year. This appeal ensued.

II.

On appeal, Goode presents the following argument:

POINT I: MR. GOODE WAS IMPROPERLY DENIED ACCESS TO THE PRETRIAL INTERVENTION PROGRAM ON THE BASIS OF A PATENT AND GROSS ABUSE OF DISCRETION BECAUSE THE PTI DIRECTOR'S FINDINGS WERE NOT ROOTED IN THE INDIVIDUAL CONSIDERATION OF MR. GOODE'S CASE, FAILED TO TAKE ACCOUNT OF HIS AMENABILITY TO REHABILITATION AND WERE ESSENTIALLY CONTRADICTED BY THE PRESIDING JUDGE DURING SENTENCING.

Based upon our review of the record, we affirm substantially for the reasons stated by Judge Caposela. We add only the following comments.

Legislatively established by N.J.S.A. 2C:43-12(e), and implemented by our Supreme Court pursuant to Rule 3:28, PTI is a discretionary program. A defendant's admission into PTI requires a positive recommendation from the program director and also the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). The prosecutor's assessment is to be guided by seventeen factors enumerated in the PTI statute. N.J.S.A. 2C:43-12(e)(1) to (17).

Because of "the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, supra, 139 N.J. at 246). Judicial review of PTI denials "serves to check only the 'most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). Accordingly, the scope of judicial review of objections to a defendant's admission into PTI is severely limited. State v. Hermann, 80 N.J. 122, 128 (1979). Thus, "[a] defendant attempting to overcome a prosecutorial veto [of PTI admission] must 'clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent.'" Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246).

The stringent standards for reversing the denial of a PTI admission are not met in this case. Defendant's unprovoked and sustained attack on a police officer provided the program director and the prosecutor with ample grounds for rejecting him from the PTI. We discern neither a misapplication of Guideline 3 under Rule 3:28 nor any failure to accord defendant individualized attention. Moreover, we find nothing inconsistent in Judge Caposela's decision to uphold the PTI denial and at the same time grant Goode lenity in the sentence.

Affirmed.

1 The actual sentencing occurred on August 6, 2010. The written judgment of conviction contains a handwritten notation suggesting that it was executed by the sentencing judge on August 12, 2010. However, the judgment of conviction also contains a filed stamp of the Passaic County Criminal Division Manager's Office indicating a date of August 23, 2010.

2 Goode challenges neither the requirement of a guilty plea prior to the application to PTI, nor the State's implicit grant of a proxy to the PTI Director.