STATE OF NEW JERSEY v. THOMAS BALUKA

NOT FOR PUBLICATION WITHOUT THE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.

THOMAS BALUKA,

Defendant-Appellant.

March 10, 2014

Submitted February 5, 2014 - Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-05-00384.

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

Geoffrey D. Soriano, Somerset CountyProsecutor, attorney for respondent(James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomas Baluka appeals from his judgment of conviction, challenging the Law Division Order denying his motion for admission into the Pretrial Intervention (PTI) Program over the county prosecutor's objection. We affirm.

I.

On April 24, 2012, defendant used a computer at the North Plainfield Library to download child pornography from the internet and print the down-loaded images. Another library patron observed defendant viewing the pornography and alerted the library staff, who in turn contacted the police. After the officers arrived at the library, they observed defendant viewing the child pornography and in possession of numerous pages of printed images. The officers placed defendant under arrest and seized the images. A subsequent search of defendant s home led to the discovery of other child pornography. Defendant admitted to the police that he had a sexual interest in this material. On the date of the offense, defendant was seventy-five years old, with no prior criminal convictions.

On May 24, 2012, a Somerset County grand jury returned an indictment charging defendant with a single count of fourth-degree endangering the welfare of children by possession of child pornography, in violation N.J.S.A. 2C:24-4b(5)(b). Defendant applied for admission into the PTI program on June 6, 2012. Two weeks later, the PTI director rejected defendant's application for PTI, concluding he was not a suitable candidate because, "[b]y downloading this pornography, [he was] supporting the exploitation of children." The prosecutor agreed, concluding

[t]he nature and facts of this particular offense warrant prosecution in the normal course. Defendant utilized a public library and its public computer network to access and view child pornography. . . . By viewing and printing the child pornography at the library, defendant recklessly exposed it to others. . . . P.T.I. is not a sufficient sanction to deter this type of criminal conduct. Furthermore[,] the State cannot deem this crime victimless, as one only needs to see a single child pornographic image to grasp the horrible victimization. Defendant's choice to view and print such material at the library supports child exploitation. Defendant also possessed additional child pornography in his home. The need for public prosecution outweighs the value of diversionary P.T.I in this case.

The prosecutor specifically acknowledged considering defendant's advanced age and lack of prior criminal convictions, but also noted, "the State has not received any specific or special information from defendant regarding his suitability for P.T.I."

Defendant filed a motion appealing his rejection from the PTI program, which Judge Julie M. Marino denied for reasons set forth in her written opinion issued on August 9, 2012. Judge Marino rejected defendant's argument that the prosecutor had failed to consider the totality of the circumstances, specifically his age, lack of criminal history and alternative forms of punishment, noting "[t]he Court does not find this argument persuasive because the Defendant was rejected after consideration of multiple facts, specifically N.J.S.A. 2C:43-12(e): (1), (7), (8), (14), and (17), not to mention Guidelines 1(b), 1(c) and 3(i) of [Rule] 3:28." Based on her review of the record in light of the applicable law, Judge Marino was satisfied the prosecutor had adequately detailed "legally sufficient and appropriate reasons for rejection," concluding the decision was "not arbitrary, irrational or otherwise inappropriate."

Following the denial of PTI, defendant pled guilty to endangering the welfare of children and was sentenced to two years of non-custodial probation, conditioned upon submitting to a psychological evaluation and completing any recommended counseling.1 The court also imposed mandatory fines and penalties.

On appeal, defendant argues the rejection of his PTI application constituted a patent and gross abuse of discretion because the prosecutor failed to consider all relevant factors, and considered irrelevant or inappropriate factors. He further contends rejecting his PTI application subverted the goals underlying the PTI Program.

II.

Eligibility for PTI is based primarily on "the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense." N.J.S.A. 2C:43-12(b). "Admission [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) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). In making a determination to admit, "a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (citing State v. Sutton, 80 N.J. 110, 119 (1979)).

A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his [or her] admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008). "In respect 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." Negran, supra, 178 N.J. at 82.

Accordingly, a court's scope of review of such a decision is "severely limited," and has been characterized as one of "'enhanced' or 'extra'" deference. Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)); see Nwobu, supra, 139 N.J. at 246. Therefore, "[i]n order 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." Watkins, supra, 193 N.J. at 520 (citation and internal quotation marks omitted). "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.

III.

Applying the above standards, we discern no abuse of discretion in the prosecutor's denial of defendant's application, much less one that is "patent and gross." Watkins, supra, 193 N.J. at 520. "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.'" Ibid. (quoting State v. Wallace, 146 N.J. 576, 583 (1996)).

Here, the record fully supports the prosecutor's denial of defendant's application based on a finding defendant had failed to rebut the presumption of ineligibility due to the serious nature of the offense. "[I]t is . . . well settled that a prosecutor's refusal to divert a particular defendant can, in appropriate circumstances, be based solely on the nature of the offense charged." State v. Kraft, 265 N.J. Super. 106, 115 (App. Div. 1993). Defendant was viewing, downloading and printing child pornography at a public library, recklessly exposing others to this offensive material. Further, he possessed additional child pornography in his home. Since this was not a solitary incident, it is far from certain that defendant would have benefited from the short-term rehabilitation he would have received through the PTI program. Accordingly, we find no reason to disturb the prosecutor's decision.

Defendant argues, unpersuasively, the denial of his PTI application was improper because it was not based on an individualized evaluation of all the relevant factors in his case. However, based on the rejection letter, it is clear the PTI director reviewed defendant s application, including his specific background and individual circumstances pursuant to N.J.S.A 2C: 43-12. The prosecutor considered the same information in affirming the PTI director s decision to reject the application. Notably, a reviewing court must assume that all relevant factors were considered and weighted in reaching a PTI decision, unless and until a defendant demonstrates to the contrary. Nwobu, supra, 139 N.J. at 249 (citing State v. Dalgish, 86 N.J. 503, 509 (1981)).

After careful review, we are satisfied the court employed the correct standard in evaluating the decision to deny defendant admission to the PTI program. We are convinced that each of the relevant issues was considered before rejecting defendant's application. We find no indication that irrelevant or inappropriate factors played a role in the decision. Finally, defendant failed to meet his heavy burden to demonstrate the prosecutor s decision was a clear and patent abuse of discretion.

Affirmed.

1 While defendant technically appeals from his judgment of conviction entered on February 8, 2103, his arguments on appeal are confined to challenging the August 15, 2012 order denying his motion for admission into the PTI Program.