STATE OF NEW JERSEY v. JULIUS P. JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3708-11T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JULIUS P. JACKSON,

Defendant-Respondent.

__________________________________

A

May 17, 2013

rgued telephonically November 14, 2012 - Decided

 

Before Judges Ostrer and Kennedy.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-10-1511.

 

Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).

 

Sylvia M. Orenstein, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Orenstein, of counsel and on the brief).

PER CURIAM

The State appeals from the trial court's March 1, 2012 order compelling defendant's enrollment in the Pretrial Intervention Program (PTI) over the prosecutor's objection. Defendant, Julius Jackson, was charged in an October 2011 indictment with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f. The State argues it did not engage in a gross and patent abuse of discretion in denying PTI admission; therefore, the trial court erred in overriding its decision. We agree, and reverse.

I.

The facts are undisputed. On March 12, 2011, defendant was a passenger in a vehicle with Virginia tags traveling on the New Jersey Turnpike. Two New Jersey State Troopers stopped the vehicle for a motor vehicle violation. One of the troopers saw a .45 caliber Ruger P90 handgun in plain view on the front dashboard. The troopers drew their weapons, ordered defendant and the driver out of the vehicle, and placed them under arrest.

The troopers seized the handgun. According to the police investigation report, "The handgun was found with the sliding bolt locked to the rear with a partially loaded magazine next to the handgun. . . . The weapon was found to have five .45 caliber hollow nose rounds and one .45 caliber full metal jacket loaded in the magazine." Although the narrative is not entirely clear, it appears the handgun was loaded, while an additional loaded magazine was lying next to it. However, as we discuss below, whether the gun was loaded does not affect our decision.

During a consent search of the vehicle, the troopers found a .380 caliber full metal jacket round in the front ash tray and one .380 caliber hollow nose round in a box on the rear seat.

After defendant received his Miranda1 warning and waived his right to remain silent, he stated he owned the handgun, possessed it for protection, and purchased it legally about three years earlier from a sporting goods shop in Virginia. He explained he was travelling from Virginia to Roselle, New Jersey to help his fiancé move. He stated he was unaware that New Jersey's firearm laws differed from Virginia's. The driver of the vehicle confirmed the purpose of their trip, and that defendant owned the weapon.

Defendant applied for admission into PTI after he was indicted. The Criminal Division Manager, as the PTI Director, recommended defendant's admission into PTI. According to the director's report, defendant was then a thirty-one year old high school graduate. A resident of Virginia, he had been employed for four months in his current job and had a "varied work history." He denied use of illegal drugs. He had a twelve-year-old son, who lived with his mother. They shared custody, and defendant did not pay child support.

The report stated defendant had no record of juvenile offenses, but had three adult arrests, all in Richmond, Virginia. He was charged with misdemeanor assault and battery of a family member on August 5, 2001, Va. Code Ann. 18.2-57.2 (2013); felony shooting or throwing missiles at an occupied vehicle on March 7, 2002, Va. Code Ann. 18.2-154 (2013); and another instance of misdemeanor assault and battery of a family member on May 15, 2003. The report reflects that the first and third arrests resulted in dismissals. The second was disposed of by nolle prosequi. See Va. Code Ann. 19.2-265.3 (2013). The report also reflects that defendant was "arrested . . . for a revocation of a suspended sentence" on February 20, 2005, which was dismissed on August 23, 2005. The report states that the 2001 assault charge was also dismissed on August 23, 2005.2 The PTI Director did not propose that defendant perform any community service, or that he forfeit his driving privileges.

Defense counsel urged the assistant prosecutor to accept the PTI Director's recommendation. He argued that the circumstances presented the rare case in which PTI would be appropriate for a defendant charged with an offense under the Graves Act, N.J.S.A. 2C:43-6c. Counsel cited Attorney General Directive to Ensure Uniform Enforcement of the "Graves Act" (AG Directive) (Nov. 25, 2008), available at http://www.acpo.org/ gravesact.pdf. The AG Directive generally requires prosecutors to strictly enforce a presumption that persons charged with Graves Act offenses are ineligible for PTI. However, the directive states:

[I]t is expected that prosecutors will consent to a defendant's admission to PTI only in rare cases involving extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession (e.g., the defendant has no prior involvement with the criminal justice system, he or she lawfully acquired and possessed the firearm in a different state and the defendant's presence in New Jersey was incident to lawful travel).

 

[Id. at 8.]

 

Defense counsel also referred to documentary discovery not before us, confirming that defendant legally purchased the firearm after passing a criminal background check. Defense counsel did not address the presence in the vehicle of .380 caliber bullets, including a hollow nose round, when defendant possessed a .45 caliber handgun.

The assistant prosecutor had denied the PTI recommendation. He relied primarily on the nature of the offense, the facts of the case, the risk of injury created, and the public's interest in enforcing New Jersey's firearm laws. The assistant prosecutor also gave weight, albeit "minimal," to defendant's prior arrests. We quote the rejection letter at length:

The State does adopt the factual recitation set forth in the PTI report. It should be noted that subsequent investigation by the State confirmed that the defendant purchased the seized weapon in Virginia and was the legal owner of same. Further, there is no indication that there are any pending criminal charges against this defendant in Virginia or elsewhere as of this date. These additional factors do not change the decision of the State in this matter, which is based upon the following factors:

 

N.J.S.A. 2C:43-12(e)(1): The nature of the most significant charge herein, Unlawful Possession of a Weapon, normally carries both a presumption of incarceration as a second degree offense and a period of parole ineligibility as a Graves Act offense. While the State, as set forth herein, recognizes that the facts of this case do not necessarily mandate a period of incarceration, the nature of the charged offense weighs against PTI in this matter.

 

N.J.S.A.2C:43-12(e)(2),(10): Inthis matter, the defendant was in possession of a handgun that was on the dashboard of the car in which he was the passenger. The gun, and a partially loaded clip of ammunition were in arm's reach of the defendant at the time of the motor vehicle stop. The observation of the handgun by the officers at the time of the motor vehicle stop led the troopers to draw their service weapons. It is not difficult to imagine that this fact scenario could have ended differently, and badly, for any of the participants, or for other motorists on the road at the time of the arrest. The State affords these factors substantial weight in this matter.

 

N.J.S.A. 2C:43-12(e)(7): There is strong societal need to enforce the laws surrounding weapons' possession in the State. The manner in which the defendant possessed the handgun, as well as the hollow-point ammunition, flies in the face of those laws. While there is no indication that the defendant intended to use the .45 Ruger in question, this factor weighs in favor of the State in this action.

 

N.J.S.A. 2C:43-12(e)(12): As noted in the PTI program report, this defendant has no prior convictions. However, he has three prior arrests for assaultive or dangerous conduct. While all ultimately resulted in dismissals, the State gives some minimal weight to this factor as a factor supporting rejection.

 

The State recognizes that there are factors which weigh in you[r] client's favor, specifically N.J.S.A. 2C:43-12(e)(3), (8) and (9). The remaining factors have been found by the State to be neutral in their weight or irrelevant based upon the facts of this case. A careful evaluation of all the relevant factors does, however, lead the State to conclude that the defendant cannot be recommended for entry into the Pre-Trial Intervention program in this matter.

 

Defendant appealed to the trial judge. The court held it was inappropriate to rely on defendant's arrests, because they resulted in dismissals. The court then addressed each of the criteria set forth in N.J.S.A. 2C:43-12e, and concluded, on balance, they favored admission to PTI. Specifically, the court found the following factors favored defendant's admission: "the facts of the case," because defendant owned the gun lawfully in Virginia, he possessed it here while traveling, and defendant had no criminal history, N.J.S.A. 2C:43-12e(2); defendant's motivation and age, N.J.S.A. 2C:43-12e(3); the absence of a pattern of anti-social behavior, N.J.S.A. 2C:43-12e(8); defendant's lack of a record of criminal and penal violations and the lack of danger he posed to others, N.J.S.A. 2C:43-12e(9); and the harm to society by abandoning prosecution would not outweigh the benefits of diverting defendant to PTI, N.J.S.A. 2C:43-12e(17).

The court found the nature of the offense, N.J.S.A. 2C:43-12e(1), was neutral. The court reasoned that although the charged offenses were serious, defendant legally obtained the firearm. The court determined that only one factor favored rejection: whether or not the crime was of an assaultive or violent nature, "whether in the criminal act itself or in the possible injurious consequences of such behavior[.]" N.J.S.A. 2C:43-12e(10). The court found inapplicable factors four through seven, eleven, and thirteen through sixteen, N.J.S.A. 2C:43-12e(4) (7), (11), and (13) (16).

The court also relied on the AG Directive. Noting that a court must find a patent and gross abuse of discretion to reverse a denial of PTI, the court stated,

In this particular case, I ruled the way that I ruled because the state attorney general guidelines . . . specifically state[] that there's an exception to the general presumption of ineligibility for pretrial intervention . . . when . . . the defendant has no prior convictions, he possessed a weapon lawfully in a foreign state and he was lawfully traveling through the State of New Jersey.

 

The court entered an order stating the motion to admit defendant into PTI was granted, and directing that "defendant shall be enrolled" in the county's PTI program.

This appeal followed, resulting in an automatic stay of defendant's admission. See R. 3:28(f). The State argues that defendant failed to show that the prosecutor committed a patent and gross abuse of discretion in denying defendant admission to PTI.

II.

We review de novo the trial judge's decision to override the prosecutor's rejection of a PTI application. We do so because "[i]ssues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law[.]'" State v. Maddocks, 80 N.J. 98, 104 (1979). "Consequently, on such matters 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." Id. at 105; see also Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

We review basic principles. Admission to PTI requires the prosecutor's consent. State v. Nwobu, 139 N.J. 236, 246 (1995). The PTI statute suggests a non-exclusive list of seventeen criteria for the prosecutor's consideration. N.J.S.A. 2C:43-12e; see State v. Brooks, 175 N.J. 215, 226-27 (2002). Prosecutors exercise broad discretion in determining whether to admit a person to PTI, as it derives from their charging authority. Nwobu, supra, 139 N.J. at 246. We extend "'enhanced'" deference to the prosecutor's decision. State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)). The court's "severely limited" review is designed to address "only the 'most egregious examples of injustice and unfairness.'" Negran, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

A defendant challenging a PTI rejection must "clearly and convincingly establish that the prosecutor's refusal . . . was based on a patent and gross abuse of his discretion[.]" Nwobu, supra, 139 N.J. at 246 (emphasis omitted) (citation and quotation omitted). To meet this burden a defendant must satisfy one of three factors, plus show the prosecutor's decision undermines the purpose of PTI.

Ordinarily, an abuse of discretion will be manifest 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. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.

 
[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]

 

Among the goals of PTI is to provide "opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision . . . to deter future criminal behavior by an applicant," N.J.S.A.2C:43-12a(1), and to assist in controlling criminal calendars, by focusing resources "on matters involving serious criminality and severe correctional problems[.]" N.J.S.A.2C:43-12a(4).

Persons charged with second- or first-degree crimes, which carry a presumption of incarceration, are presumed ineligible for PTI. SeeNwobu, supra, 139 N.J.at 252 (stating that persons charged with second-degree crime must demonstrate extraordinary or unusual facts to establish "'compelling reasons' for admission into PTI"); Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) at 1126 (2013) ("A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor."). A defendant shall have the opportunity to demonstrate "compelling reasons" justifying admission. Ibid. On the other hand, the Court "has warned that conditioning a defendant's admission to PTI solely on the nature of his or her offense 'may be both arbitrary and illogical' and that '[g]reater emphasis should be placed on the offender than on the offense.'" Brooks, supra, 175 N.J. at 224-25 (quoting State v. Leonardis, 71 N.J. 85, 102 (1976)).

Applying this demanding standard of review, the trial court erred in overriding the prosecutor's decision. First, the trial court, not the prosecutor, misconstrued the authorized criteria. Second, we are convinced the trial judge simply substituted his judgment for the prosecutor's, which is inconsistent with the required deferential standard of review. SeeState v. Wallace, 146 N.J.576, 589 (1996) (reversing trial court's override of prosecutor's rejection, finding "[t]he court essentially evaluated the case as if it stood in the shoes of the prosecutor, whereas it should have been focused on whether it amounted to an 'arbitrary, irrational or otherwise an abuse of discretion' for the prosecutor to have assigned as much weight to the gravity of the offense as she apparently did in this case").

Contrary to the trial court's view, our Supreme Court has confirmed that a prosecutor may consider an applicant's prior arrest record, even where the charges were later dismissed. Brooks, supra, 175 N.J.at 228. An arrest record "contribute[s] toward the composite picture of the 'whole man.'" Ibid. (internal citation and quotation omitted). Without inferring guilt from an unproved, dismissed charge, a prosecutor may consider the extent to which prior arrests did not deter an applicant from committing a subsequent crime. Seeid.at 228-29.

In this case, defendant has been arrested three times for offenses involving assaultive behavior. One charge involved the shooting or throwing of missiles at a vehicle. Va. Code Ann. 18.2-154 (2013) (referring to "[a]ny person who maliciously shoots at, or maliciously throws any missile at or against" occupied railroad cars or motor vehicles). Yet he apparently made no effort to ascertain New Jersey law on the carrying of firearms assuming the truthfulness of his reported statement he was unaware of any difference between New Jersey and Virginia laws. Despite his arrests, he was not deterred from carrying a handgun, loaded or not, in close proximity to a loaded magazine, and within easy reach while traveling on a public roadway. Nor does Virginia law require open display of a firearm in that manner.3

The court also misconstrued the import of the AG Directive. The directive recognizes there may be "rare cases" in which it would be inappropriate to strictly enforce the presumption of PTI ineligibility. However, defendant falls short of presenting the illustrative case mentioned in the directive. The cited example refers to a person who has "no prior involvement with the criminal justice system," AG Directive at 8, yet defendant was thrice arrested, and also the subject of a probation or suspended sentence revocation proceeding. The directive speaks of a defendant's "presence in New Jersey . . . incident to lawful travel," yet defendant was not just passing through New Jersey. Roselle, New Jersey was his destination.

Ultimately, as the AG Directive recognizes, the issue is whether a defendant has presented "extraordinary and compelling circumstances" that place the case "outside the heartland of the legislative policy to deter unauthorized gun possession[.]" Ibid. The State apparently concluded that, notwithstanding defendant's lawful possession of a firearm in Virginia, prosecution as opposed to diversion still served the legislative goal of deterring possession of a firearm. Under these circumstances, we cannot conclude that the prosecutor committed an abuse of discretion, let alone a patent and gross abuse of discretion.

Next, the judge deemed the nature of the charge, N.J.S.A.2C:43-12e(1), a neutral factor, solely based on defendant's legal procurement of the weapon. However, defendant's legal procurement of the weapon does not distinguish him from a New Jersey resident in the same circumstance, who lawfully owns a handgun, but does not have a permit to carry, N.J.S.A.2C:58-4. Defendant's ignorance of New Jersey law also, conceivably, could be shared by a New Jersey resident, although we recognize a person from out-of-state, accustomed to openly carrying a weapon, may be less likely to anticipate a different legal regime. In any event, the prosecutor did not grossly abuse his discretion in assigning weight to the nature of the offense, given the severe penalties attached to a violation, and the Legislature's amendment in 2007 making unlawful possession of a handgun a second-degree crime. L.2007, c.284, 1.

Likewise, the court's view that the "facts of the case," N.J.S.A.2C:43-12e(2), favored PTI admission, hardly bespeaks a gross abuse of discretion by the prosecutor. The court inaccurately stated defendant "was lawfully traveling through the State," when New Jersey was his destination. The court also focused on defendant's lawful possession of the weapon in Virginia.

However, the court ignored other facts of the case, weighed heavily by the prosecutor, in rejecting the application. These included that the weapon was loaded, or, even if unloaded, close to a loaded magazine; it was within easy reach; and its discovery during a motor vehicle stop prompted two troopers to draw their weapons, apparently perceiving, reasonably, that their safety might be threatened. The situation was fraught with danger.

The court also parted with the prosecutor's judgment that "[t]he needs and interests of the victim and society," N.J.S.A.2C:43-12e(7), supported rejection of PTI participation. The court stated, "we have a situation where the legislature speaking for society has specifically made this type of scenario, the type that should be allowed into pre[-]trial intervention[.]" Apparently intending to refer to the AG Directive, as opposed to the legislature, the court nonetheless erred. The AG Directive does not minimize society's interest in rigorously controlling the carrying of firearms whether by a New Jersey resident, or an out-of-state traveler. That persists. Rather, the AG Directive observed that extraordinary and compelling circumstances may sometimes warrant diversion from prosecution for a violation.

Defendant was obliged to establish, by clear and convincing evidence, a patent and gross abuse of discretion. In his effort to do so, he relied almost exclusively on his lawful possession of the weapon in Virginia, his ignorance of New Jersey law, and his lack of a conviction record. He provided no detailed proof regarding his suitability for supervisory treatment, or his current circumstances. Nor did he provide the State with any explanation for the presence of ammunition that did not match his lawfully procured handgun.

Mindful of the three prerequisites of an abuse of discretion, set forth in Bender, supra, 80 N.J.at 93, the record reflects that the prosecutor considered all relevant factors; he did not consider irrelevant or inappropriate ones; nor did the prosecutor's rejection "amount[] to a clear error in judgment." Ibid. We recognize that reasonable minds could differ as to defendant's suitability for PTI. However, the evidence does not demonstrate that the prosecutor's rejection "will clearly subvert the goals underlying Pretrial Intervention." Ibid. Therefore, there was no patent and gross abuse of discretion.

Reversed and remanded.

 

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

2 The recommendation does not explain how defendant may have been the subject of a proceeding to revoke probation or a suspended sentence without having first received a suspended or probationary sentence after a conviction. See Va. Code Ann. 19.2-306 (2013) (governing revocation of suspended sentence or probation). The fact that the 2001 assault and battery charge was "dismissed" in 2005, at the same time the proceeding to revoke a suspended sentence or probation was "dismissed," raises questions about whether the disposition of the 2001 charge was accurately described.

3 Virginia law generally requires that a person possess a "concealed handgun permit" in order to "carry [a firearm] about his person [but] hidden from common observation." Va. Code Ann. 18.2-308 (2013); see also Schaaf v. Commonwealth, 258 S.E.2d 574, 575 (Va. 1979) (stating that concealed weapon statute is designed to control the carrying of a weapon that is concealed "yet so accessible as to afford prompt and immediate use") (citation omitted). While defendant allegedly believed he was required to maintain his firearm in public view, he could have legally placed it in the trunk or a container, Va. Code Ann. 18.2-308(B)(10) (2013) (stating concealed weapon may be transported in a motor vehicle "secured in a container or compartment in the vehicle"). He was also free to keep the weapon unloaded, and in open view in the rear of the vehicle.