STATE OF NEW JERSEY v. TRAVIS ARMSTRONG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRAVIS ARMSTRONG,

Defendant-Appellant.

__________________________

February 26, 2014

Submitted February 5, 2014 Decided

Before Judges Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-06-1148.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Travis Armstrong appeals from the denial of his motion to compel entry into the Hudson County pre-trial intervention (PTI) program pursuant to N.J.S.A. 2C:43-12f. We affirm.

On August 31, 2010, defendant struck Julio Cesar Perez on the head with a blunt object, causing him to lose consciousness and suffer injuries to his face, nose and elbow. Defendant then stole Perez's wallet.

On September 13, 2010, defendant approached Perez and offered to sell Perez a bicycle. When Perez declined, defendant pushed the bicycle at Perez, causing him to fall to the ground. Defendant then punched Perez in the head and body, and stole his digital camera and $50.

Defendant was sixteen-years-old at the time of the offenses, and had an extensive juvenile record that included charges for criminal offenses on nine different occasions. In this case, he was charged with first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree bias intimidation, N.J.S.A. 2C:16-1a; two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and second-degree robbery, N.J.S.A. 2C:15-1. He was waived to adult criminal court, and pled guilty to an amended charge of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a.

Defendant applied for admission into PTI. The prosecutor issued a written decision denying the application. As reasons for the denial, the prosecutor cited the nature of the offense and the fact that defendant was initially charged with second-degree robbery because he struck the victim; defendant's extensive juvenile record; and the extent to which defendant may present a substantial danger to others. N.J.S.A. 2C:43-12e(1) and (9).

Defendant filed a motion to compel admission into PTI. The trial judge denied the motion, finding that defendant used physical violence in committing the offenses, and had a lengthy juvenile record that made a high risk to reoffend. The judge concluded that the prosecutor considered all relevant factors, and the decision to deny PTI admission did not constitute a patent and gross abuse of discretion. The judge sentenced defendant to a two-year probationary term conditioned on completing 100 hours of community service. The judge also required defendant to submit to random drug testing and complete high school.

On appeal, defendant argues the judge erred in denying his motion because the prosecutor's reasons for rejection were not supported by an individualized evaluation of the factors relevant to his amenability to rehabilitation. We disagree.

Our review of judicial findings of fact in connection with a PTI decision is limited to determining whether those fact findings "could reasonably have been reached on sufficient, credible evidence in the record." State v. McKeon, 385 N.J. Super.559, 567 (App. Div. 2006). If so, our task is complete and we should not disturb the result. State v. Johnson, 42 N.J.146, 162 (1964). However, the judge's "'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" McKeon, supra, 385 N.J. Super.at 567 (quoting Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J.366, 378 (1995)).

We have held that

PTI is a diversionary program designed to augment the options of prosecutors in disposing of criminal matters . . . [and] provide applicants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant.

[State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) (alteration in original) (quoting State v. Brooks, 175 N.J. 215, 223 (2002)) (internal quotation marks omitted).]

To gain admission, a defendant must obtain a positive recommendation from the PTI director and the consent of the prosecutor. Ibid.

In making a PTI determination, the prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12e and the Rule 3:28 Guidelines. State v. Negran, 178 N.J. 73, 80-81 (2003). As part of that determination, the prosecutor must assess a defendant's "amenability to correction," "potential 'responsiveness to rehabilitation,'" and the nature of the offense charged. State v. Watkins, 193 N.J. 507, 520 (2008) (quoting N.J.S.A. 2C:43-12b). We afford "great deference" to a prosecutor's decision to deny PTI admission and our review of that decision is "severely limited." State v. Nwobu, 139 N.J. 236, 246 (1995) (internal quotation omitted). "[J]udicial review, in actuality, exists to check only the most egregious examples of injustice and unfairness." Ibid. (internal quotation marks omitted).

A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his [or her] admission into PTI." Watkins, supra, 193 N.J. at 520. "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." Negran, supra, 178 N.J. at 82. "A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Watkins, supra, 193 N.J. at 520 (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)). "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." State v. Bender, 80 N.J. 84, 93 (1979).

Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Negran, supra, 178 N.J. at 82. We afford the prosecutor's decision great deference. Wallace, supra, 146 N.J. at 589) For that reason, "[t]he scope of judicial review of a decision to reject a PTI application is 'severely limited.'" State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting Negran, supra, 178 N.J. at 82). A trial court can only overturn a prosecutor's decision to deny PTI upon finding a patent and gross abuse of discretion. Ibid.

We discern no patent and gross abuse of discretion here. Guideline 3(i) provides, in pertinent part, that

the nature of the offense is a factor to be considered in reviewing [a PTI] application. If the crime was . . . deliberately committed with violence or threat of violence against another person . . . the defendant's application should generally be rejected. A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program.

[Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) at 114-45 (2014).]

Regardless of the crime to which defendant pled guilty, he deliberately committed a violent offense, making him ineligible for PTI based on factor one alone.

In addition, N.J.S.A. 2C:43-12e(9) is broad enough to encompass consideration of a defendant's juvenile record and arrests not resulting in convictions. Brooks, supra, 175 N.J. at 228. By the time of his PTI rejection, defendant had an extensive juvenile record. His record confirms he may present a substantial danger to others and will not be amenable to correction or respond to rehabilitation.

Affirmed.