STATE OF NEW JERSEY v. SEAN BELL

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3096-10T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SEAN BELL,

Defendant-Respondent.

_____________________________________

March 19, 2012

Argued February 27, 2012 - Decided

Before Judges Parrillo and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment

No. 09-11-2055.

Samuel J. Marzarella, Supervising Assistant Prosecutor, argued the cause for appellant (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Mr. Marzarella, of counsel and on the brief).

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).

PER CURIAM

This is an appeal by the State from a February 7, 2011 order of the Law Division overturning the prosecutor's rejection and granting defendant Sean Bell admission into the pretrial intervention program (PTI). For the following reasons, we reverse.

Indicted along with co-defendant Thomas S. for second-degree and third-degree aggravated assault, N.J.S.A. 2C:12-1b(1); N.J.S.A. 2C:12-1b(7), defendant was tried by a jury and convicted of third-degree attempted aggravated assault after the second-degree charge was dismissed at the close of the State's case.1 The proofs at trial indicated that at around 11:40 p.m. on June 25, 2006, a fight broke out in front of the house where a high school graduation party was being held, hosted by the Shan and Bell families for their children. When confronted by Scott Shan, defendant became "irate and combative[,]" cursing and yelling "[y]ou kicked my friends out of here." In an attempt to physically restrain him, Shan wrestled defendant to the ground and then climbed on top of him to calm him down. When Shan eventually released him, defendant "immediately began provoking Michael Higgins by yelling at him[,]" even though Higgins told defendant that he was a corrections officer and was trying to diffuse the situation. As Higgins was walking with defendant attempting to calm him down, Higgins tripped on decorative rocks around a koi pond and fell to the ground. Shan then observed defendant and Thomas S. and Matthew S. strike Higgins in the head and face with closed fists "multiple times[,]" even after Higgins was knocked unconscious. Higgins sustained head trauma, facial lacerations requiring sutures, and dental partial avulsions.

After his conviction but prior to sentencing, defendant applied for PTI. His application was rejected on April 22, 2010 by the program director, who cited the nature of the offense, N.J.S.A. 2C:43-12e(1) and Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) of R. 3:28 (2012); the facts of the case, N.J.S.A. 2C:43-12e(2); and that the crime was assaultive or violent in nature, or had possible injurious consequences, N.J.S.A. 2C:43-12e(10). Specifically, the PTI director found:

According to PTI guideline 3(1)(3), if the crime was deliberately committed with violence or a threat of violence against another person, the defendant's application should generally be rejected. The victim sustained [l]acerations to his upper lip, left eyebrow, and inside of his bottom lip. The victim had to see a dentist due to several teeth being loosened. The victim's top two front teeth had to be wired in place. The police reports reveal that you assaulted Michael Higgins. There is no justification for assaulting another individual.

The PTI director also cited the needs and interests of the victim and society, N.J.S.A. 2C:43-12e(7); that the value of supervisory treatment would be outweighed by the public need for prosecution, N.J.S.A. 2C:43-12e(14); and that the harm done to society by abandoning criminal prosecution would outweigh the benefit to society, N.J.S.A. 2C:43-12e(17), reasoning that "[a]ggravated assault . . . is not a victimless offense."

Lastly, the PTI director found the application untimely under Rule 3:28(h), which requires application be made at the earliest possible opportunity but no later than twenty-eight days after indictment. Here, defendant did not apply for PTI until March 26, 2010, well after his superseding indictment was filed on November 12, 2009, and following his conviction.

On June 2, 2010, the Prosecutor denied defendant's PTI application for the reasons stated by the PTI director as well as "the victim's unwillingness to forego prosecution[,]" N.J.S.A. 2C:43-12e(4). As to the latter, in his letter of rejection, the prosecutor stated that "Higgins[] ha[d] been opposed to PTI from the beginning of this case, and continues to be opposed to [defendant's] entry into PTI now. There was a jury trial conducted in which the [v]ictim testified, and he has been in agreement with the full prosecution of this case from its inception."

Defendant appealed the denial to the Law Division, arguing disparate treatment compared to his co-defendant and seeking to excuse the delay by claiming counsel advised he was ineligible because he was charged with a second-degree offense. After entertaining oral argument, the judge requested the Prosecutor's Office reconsider its decision in light of its approval of Thomas S.'s PTI application:

The Court is aware that all testimony in the jury trial has not been provided to the Court. However, upon review of Mr. Shan's testimony at trial, it appears that both [defendant] and Mr. [S.] were seen hitting the victim with their fists while the victim was on the ground and not moving.

Upon reconsideration, the prosecutor maintained his position.

In a written decision of February 7, 2011, the judge ordered defendant's admission into PTI over the prosecutor's objection, finding that "the State . . . committed an abuse of its discretionary powers . . . ." The judge found the application timely because defendant was not eligible for PTI prior to the dismissal, during trial, of the second-degree assault charge. Then, addressing the merits, the judge concluded that the disparate treatment afforded defendant in denying his application while granting his similarly situated co-defendant's, amounted to a clear error in judgment.

This appeal by the State follows.

I.

We address the timeliness of defendant's PTI application as a threshold matter. N.J.S.A. 2C:43-12e requires PTI applications to be made "prior to trial":

[a]t any time prior to trial but after the filing of a criminal complaint, or the filing of an accusation or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. . . .

Rule 3:28(h) similarly establishes time constraints as to PTI applications:

Application for pretrial intervention shall be made at the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after indictment. . . .

The rule contemplates that the issue concerning enrollment into PTI shall be resolved before or at the pretrial conference and, in any event, before a plea or verdict. See Pressler & Verniero, supra, Guideline 6 of R. 3:28.

Here, defendant did not apply for PTI until after his trial and conviction on March 26, 2011. In excusing the delay, the court reasoned that pre-trial, defendant was "presumptively" ineligible for admission by virtue of the outstanding second-degree charge, Pressler & Verniero, supra, Guideline 3(i) of

R. 3:28; see also State v. Frangione, 369 N.J. Super. 258, 260-61 (App. Div. 2004), and in this regard relied on State v. Halm, 319 N.J. Super. 569 (App. Div.), certif. denied, 162 N.J. 131 (1999). Such reliance, however, is misplaced.

In Halm, supra, the defendant's initial application for admission into PTI with respect to a third-degree crime was timely. 319 N.J. Super. at 571. However, it was denied on the ground that he was also charged by separate indictment with more serious crimes, which were later all resolved in his favor. Ibid. Consequently, the defendant sought reconsideration of his PTI application solely as to the third-degree crime originally charged in the separate indictment, of which he had been convicted. Ibid. The Law Division denied the motion for reconsideration, ibid., and on appeal we reversed, holding that the defendant's post-conviction motion was not time-barred. Ibid.

Halm, then is clearly distinguishable from the case at hand. As noted, Halm, supra, permitted reconsideration of the denial of a timely filed PTI application for a third-degree crime on which the defendant was convicted after presumptively ineligible first- and second-degree crimes embodied in a separate indictment were disposed of favorably to the defendant. Id. at 573-74. Here, defendant never made a timely PTI application and the second-degree crime was charged in the very indictment which included the third-degree count for which he was tried, thereby resulting in the conviction for which defendant now, and belatedly, seeks PTI.

This case, rather, is more analogous to Frangione, supra, wherein we held that the defendant was not entitled to file an out-of-time application for PTI after pleading guilty. 369 N.J. Super. at 260. There, the defendant was charged in the same indictment with third- and second-degree drug offenses, the latter of which rendered her ineligible for admission to PTI. Id. at 259. After she pleaded guilty to third-degree possession of drugs in exchange for dismissal of the second-degree charge, the defendant formally applied to PTI. Ibid. The Law Division denied the defendant's motion to permit the PTI application as out-of-time, id. at 260, and we affirmed, reasoning that consideration of the late application would be inconsistent with the statutory deadline to which the Supreme Court conformed Rule 3:28 and the PTI Guidelines. Id. at 260-61. This same reasoning applies here as well to render defendant's PTI application out-of-time and therefore ineligible for consideration.

II.

Even assuming a timely application, we discern no abuse of prosecutorial discretion in its denial on the merits, much less one that is gross and patent. On this score, "[a]dmission [into PTI] requires a positive recommendation from the PTI director and the consent of the prosecutor." State v. Negran, 178 N.J. 73, 80 (2003); see also State v. Nwobu, 139 N.J. 236, 246 (1995). Admission decisions "'are primarily individualistic in nature and a[n administrator and] prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation.'" Negran, supra, 178 N.J. at 80 (quoting Nwobu, supra, 139 N.J. at 255) (internal citations omitted). Factors that prosecutors and program directors should consider are set forth in N.J.S.A. 2C:43-12e.

A prosecutor's determination is "'afforded great deference[,]'" often described as "'enhanced deference or extra deference.'" Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)) (internal citations omitted). Consequently, the scope of judicial review is "severely limited." Negran, supra, 178 N.J. at 82; see also Nwobu, supra, 139 N.J. at 246. Judicial review exists "to check only 'the most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); see also Nwobu, supra, 139 N.J. at 246. A reviewing court "'does not have the authority in PTI matters to substitute [its own] discretion for that of the prosecutor.'" Kraft, supra, 265 N.J. Super. at 112 (quoting State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980)). "This remains so even where the prosecutor's decision is one which the trial court disagrees with or finds to be harsh." Kraft, supra, 265 N.J. Super. at 112-13. "The question is not whether [the court] disagree[s] with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.

Thus, to warrant judicial intervention, a defendant 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 . . . .'" Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246) (internal citations omitted). An abuse of discretion will normally be found "'if defendant can show that a prosecutorial veto (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.'" Negran, supra, 178 N.J. at 83 (quoting State v. Bender, 80 N.J. 84, 93 (1979)). Further, for an abuse of discretion to be considered patent and gross, a defendant must show that "'the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.'" Ibid.

Here, the trial court overrode the prosecutor's veto based, in large measure, on what it perceived to be the disparate treatment afforded defendant when compared to his co-defendant's admission into PTI. However, the record amply supports the prosecutor's finding that the two defendants were not similarly situated. Although they share some characteristics -- age, lack of prior criminal conviction, and involvement in the altercation -- there are obvious and significant distinguishing features rendering the prosecutor's decision neither a gross nor patent abuse of discretion.

First and foremost, the victim opposed defendant's entry into PTI, N.J.S.A. 2C:43-12e(7). Second, the record proofs indicate that defendant instigated the altercation of Shan and then Higgins; was combative and aggressive throughout; and continued assaulting Higgins after he fell to the ground and was defenseless. Third, co-defendant Thomas S. showed remorse, gave the State a taped statement admitting his involvement, and agreed to testify at defendant's trial; whereas defendant, in contrast, continued to deny striking the victim despite eyewitness accounts and his own co-defendant's statements to the contrary.

These, and other distinctions, demonstrate that the prosecutor considered all relevant Guideline factors and made an individual assessment in rejecting defendant's PTI application. Assuming the timeliness of defendant's filing, we perceive no patent or gross abuse of discretion in the prosecutor's denial of the application on its merits.

Reversed and remanded.

1 Co-defendant Thomas S. did not stand trial but was admitted into PTI after agreeing to testify against defendant.