STATE OF NEW JERSEY v. JESSICA D. NUSBAUM

NOT FOR PUBLICATION WITHOUT THE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.

JESSICA D. NUSBAUM,

Defendant-Appellant.

_______________________________

May 5, 2014

Submitted April 7, 2014 Decided

Before Judges Parrillo and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-04-00628.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Ashley L. Behre, Legal Assistant, on the brief).

PER CURIAM

Defendant Jessica D. Nusbaum appeals from the August 24, 2012 order of the Law Division denying her motion to be admitted to the Pretrial Intervention (PTI) program over the objection of the Monmouth County Prosecutor. We affirm.

The relevant facts are as follows. On February 8, 2012, defendant cut up her six-month-old kitten with a pair of scissors after the animal scratched her on the finger. To punish the kitten for misbehaving, she intentionally sliced open the kitten's head and neck. Defendant then threw the injured kitten into a garbage bag and tossed the animal in a dumpster. When eventually located by defendant's boyfriend, the kitten was still alive and taken to the Shrewsbury Animal Hospital, where a veterinarian treated the kitten's head trauma and multiple lacerations, the latter necessitating forty staples. When the police later arrived to retrieve the kitten from defendant's home, defendant lied about her involvement in the attack and denied any wrongdoing. She eventually admitted that she had cut the kitten and disposed of the animal in a garbage bag.

Defendant is a single, thirty-two-year-old female who lives alone in a supervised residential apartment through SERV Behavioral Health Services in Eatontown. She has mental health issues and was first diagnosed in 2009 with mild mental retardation, bipolar disorder, borderline personality disorder (BPD), and obsessive compulsive disorder (OCD). More recently, on May 8, 2012, defendant's psychologist concluded that defendant has borderline intellectual functioning, BPD, OCD, and attention deficit hyperactivity disorder. Notwithstanding defendant's mental limitations, she graduated from high school in 1999 and held a job in customer service and sales at Bed Bath & Beyond from 2010 through 2012; she was terminated due to her commission of the present offense.

Defendant's prior involvement with the criminal justice system consists of a 2005 municipal court conviction for gathering alms (amended from shoplifting) and a second municipal conviction in 2007 for nuisance (amended from filing a fictitious police report). Defendant was also charged with harassment in the Family Part in 2011 after she threatened to "send people to [the victim's] job to beat him up." A restraining order was issued against defendant and she served thirty days of probation. The charge was eventually dismissed at the victim's request.

As a result of the present incident, defendant was arrested and charged with fourth-degree animal cruelty, N.J.S.A. 4:22-17b, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. She applied for admission into Monmouth County's PTI program and on May 24, 2012, the Probation Department recommended her for enrollment. However, by memorandum dated June 13, 2012, the County Prosecutor denied defendant's application pursuant to Rule 3:28, based on considerations set forth in N.J.S.A. 2C:43-12e(2), (3), (5), (6), (7), (9), (10) and (14). Specifically, the prosecutor concluded: (1) defendant's extreme violence against the defenseless kitten indicated she posed a danger to others; (2) defendant had a prior record which did not deter her commission of the present crime; (3) her motivation to succeed in PTI was "questionable" because she minimized and deflected her responsibility during the PTI interview; (4) defendant has mental health issues for which she was receiving treatment at the time she committed the present crime, suggesting PTI rehabilitative measures would not be intensive enough or of a duration to be effective; and (5) society had a strong interest in traditional prosecution in this animal cruelty case.

Defendant appealed her rejection from the PTI program to the Law Division. Following argument, the judge denied the appeal, finding no patent or gross abuse of prosecutorial discretion and further reasoning:

In this setting, again, under the law, it is not the Court's function to substitute its judgment for that of the prosecutor. Clearly, it may be that I personally would come to a different result and agree with the probation officer that PTI is warranted, but under the law it's not the function of the judge to do that. It's a procedure that's committed to the function of the Prosecutor's Office and not the Court, and clearly (e)(10) supports the prosecutor's determination in this case and is not [a] gross abuse of discretion.

So summarizing the various grounds that were utilized, I have gone through each and every factor. The only one that appears to be somewhat questionable are factors five and six, but looking at all of the other factors the Court has to evaluate whether the prosecutor considered all of the relevant factors on this statute. I find that they did and that, overall, the decision to deny PTI in this case was not a patent and gross abuse of discretion on the prosecutor's part . . . .

Thereafter, defendant pled guilty to the animal cruelty count, reserving her right to appeal the denial of her admission to PTI. She was sentenced to eighteen months probation and seventy-five hours of community service. Appropriate fees and penalties were also imposed.

On appeal, defendant argues:

THE REJECTION OF [DEFENDANT] FROM PTI CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION, NECESSITATING REVERSAL AND HER ADMISSION TO THE PROGRAM.

We have considered this argument in light of the record and the applicable legal precedents and have found it to be unpersuasive.

Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). Admission to PTI is governed, in general, by both statute, N.J.S.A. 2C:43-12 to -22, and court rule, Rule 3:28. See Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, comments on R. 3:28 (2014). The scope of judicial review of a decision to reject a PTI application is "'severely limited[,]'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), and interference in that decision by the courts is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

The standard to be applied by the courts in reviewing PTI decisions has been referred to as "'enhanced'" or "'extra'" deference. State v. Baynes, 148 N.J. 434, 443 (1997) (quoting Nwobu, supra, 139 N.J. at 246). Moreover, the burden on any defendant who seeks to overturn the denial of a PTI application is particularly weighty. As our Supreme Court has held, a defendant seeking to overcome rejection from PTI must prove by clear and convincing evidence that the decision to reject his or her application was a "'patent and gross abuse of

. . . discretion.'" Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246); see State v. Brooks, 175 N.J. 215, 225 (2002).

In applying this test, our Supreme Court has noted that if a rejected defendant can prove that the decision "(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[,]" then an abuse of discretion would "[o]rdinarily . . . be manifest

. . . ." State v. Bender, 80 N.J. 84, 93 (1979). However, in order to raise that presumption to the level of a "patent and gross" abuse of discretion, the defendant must also prove that his or her rejection from PTI will "clearly subvert the goals" of the PTI program. Ibid. Similarly, our Supreme Court has held that it is appropriate to reverse a decision rejecting PTI that "is contrary to the predominant views of others responsible for the administration of criminal justice" such that it is "clearly unreasonable so as to shock the judicial conscience" or that it "could not have reasonably been made upon a weighing of the relevant factors." Nwobu, supra, 139 N.J. at 253-54 (internal quotations omitted).

Governed by this standard, defendant's PTI rejection was not a patent or gross abuse of discretion. Indeed, the record demonstrates that both the prosecutor and motion judge carefully analyzed and evaluated all facets of defendant's PTI application as well as her individual circumstances. Contrary to defendant's claims, and as evidenced in the prosecutor's rejection memorandum, the prosecutor fully considered defendant's mental health issues in her evaluation of defendant's PTI application. State v. Hoffman, 399 N.J. Super. 207, 215 (App. Div. 2008); see also Bender, supra, 80 N.J. at 94. The fact that the prosecutor did not view such evidence in the same exculpatory manner that defendant suggests does not render her evaluation unreasonable, much less a patent or gross abuse of discretion. State v. Maddocks, 80 N.J. 98, 107 (1979). On the contrary, defendant committed this senseless act of cruelty while receiving treatment for her psychological conditions. Moreover, the circumstances surrounding commission of the instant offense, including disposing of the kitten in the dumpster and then lying to her boyfriend about the animal's disappearance, demonstrate defendant's consciousness of wrongdoing and attempt to avoid responsibility for it.

Relatedly, in considering the state of defendant's mental health, it was not unreasonable to conclude that defendant's disabilities and potential for rehabilitation were beyond the scope of the "short term rehabilitative work or supervision" offered by the PTI program. Guidelines for Operation of Pretrial Intervention in New Jersey, supra, comment on Guideline 1(d). See R. 3:28(b)-(d); N.J.S.A. 2C:43-12b; State v. Von Smith, 177 N.J. Super. 203, 205 n.1 (App. Div. 1980).

Furthermore, in evaluating defendant's responsiveness to rehabilitation, N.J.S.A. 2C:43-12e(6), and suitability as a candidate for PTI, the prosecutor properly considered defendant's prior record, including two municipal court convictions, as well as the facts of the present matter, which strongly suggest violent conduct deserving of traditional prosecution. N.J.S.A. 43:12e(9). In this regard, the prosecutor reasoned that all of defendant's previous violations "have failed to deter her or motivate her to lead a law abiding life." This circumstance, coupled with the violence against the kitten, led the prosecutor to reasonably conclude that defendant posed a danger to others, N.J.S.A. 2C:43-12e(9), (10), justifying rejection of defendant's PTI application.

Accordingly, we conclude that the prosecutor and judge carefully considered defendant's background and individual circumstances, and diligently analyzed all relevant factors in rendering their decisions. We discern no error in the judge's conclusions and detect no "patent and gross abuse of discretion" in the decision of the prosecutor to reject defendant from the PTI program.

Affirmed.