STATE OF NEW JERSEY v. QUAHEEM S. GREEN

NOT FOR PUBLICATION WITHOUT THE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.

QUAHEEM S. GREEN,

Defendant-Appellant.

________________________________________________________________

January 29, 2014

Submitted October 29, 2013 Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-08-1444.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order that denied his motion to compel the State to allow him to apply for admission into the Pretrial Intervention (PTI) program. We reverse and remand for further proceedings.

Defendant was arrested for a home burglary, and along with two co-defendants, was indicted for second-degree burglary, N.J.S.A. 2C:18-2, and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(7). The PTI program would not consider defendant for admission without the consent of the prosecutor because he faced a second-degree charge. His counsel submitted a formal request for such consent to the prosecutor, noting that defendant was twenty-two years old, and, although he had a conditional discharge for a misdemeanor in New York, he had no prior criminal record in New Jersey. Counsel noted further that the pellet gun found at the time of the arrests was not used to threaten the victims of the burglary or the officers and was not attributed to any one of the defendants. The State did not consent.

Defendant appealed the State's decision to withhold consent. In opposing defendant's motion to be allowed to file an application for PTI, the State set forth the reasons for its refusal to consent, addressing each of the seventeen factors set forth in N.J.S.A. 2C:43-12(e) that are applicable to denying an application for admission into PTI.

On the return date of the motion, the trial court clarified that defendant was not appealing from the rejection of his application to be admitted to PTI, but rather, from the Prosecutor's position that he should not be permitted to apply to the program. The court stated, "The defendant has an absolute right to make the application, but not an absolute right to get into the program. But somehow this is being treated as, you have a second-degree charge, you don't get any further."

Counsel for defendant acknowledged that the "PTI staff [did] not have to engage in a full work up of every case . . . especially when there is a . . . rebuttable presumption against eligibility." Still, he argued that defendant had the right to apply for the program and have the application considered on the merits by the PTI program.

The State denied that defendant had an absolute right to make the application; stating repeatedly that it would not consent to PTI for defendant and that it would be a waste of resources to permit defendant to apply to the program. The State contended that, because it had provided a statement of reasons for rejecting an application from defendant in response to the motion, the motion should be treated as an appeal from a denial of his application and that, accordingly, defendant bore the burden of showing a gross abuse of discretion by the Prosecutor.

In an order dated December 9, 2011, the trial court denied defendant's motion "based upon vicinage policy, the failure of the defendant to show compelling reasons for admission into the pre-trial intervention program, the prosecutor's objection, and for the reasons set forth in the prosecutor's memorandum[.]"

Defendant was therefore barred from submitting an application to the PTI program. Nonetheless, the Criminal Division Manager sent a letter to defendant's counsel, dated December 20, 2011, stating defendant's application for PTI had been considered and that the Office determined it would oppose defendant's enrollment in the PTI program.

Thereafter, defendant entered a guilty plea to second-degree burglary. Pursuant to the plea agreement, defendant was sentenced as a third-degree offender to a term of three years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and remaining charges were dismissed.

In this appeal, defendant argues he was deprived of his statutory right to apply to PTI as a result of a vicinage policy that precludes defendants charged with second-degree offenses from submitting a PTI application without the Prosecutor's consent.1 He contends that this policy contravenes "the plain language of the PTI guidelines" and our decision in State v. Green, 407 N.J. Super. 95 (App. Div.), remanded on other grounds, 200 N.J. 471 (2009), remanded to the trial court, 413 N.J. Super. 556 (App. Div. 2010). We agree.

Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial," State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). We afford the prosecutor's decision an enhanced level of deference, State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993), and a prosecutor's decision to reject a PTI applicant will only be overturned "rarely." State v. Wallace, 146 N.J. 576, 585 (1996) (quoting State v. Leonardis, 73 N.J. 360, 380 (1977)). To warrant judicial intervention, the prosecutor's consideration must amount to a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 572 (2002); see State v. Caliguiri, 158 N.J. 28, 37 (1999); State v. Bender, 80 N.J. 84, 93 (1979).

It is important to note that in this case, we are not reviewing an appeal from the prosecutor's rejection of defendant's application after it has been considered on the merits by both the Criminal Division Manager and the Prosecutor's Office. As the trial court observed, there was no review of defendant's application because the Prosecutor refused to allow it to proceed, based on a "vicinage policy." The State has presented no authority to support the proposition that the breadth of the prosecutor's discretion is so expansive as to include a gatekeeper function of determining who may or may not apply for PTI in the first instance.

One of the bedrock principles underlying pretrial intervention is that "[a]ny defendant accused of crime shall be eligible for admission into a PTI program." Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler and Verniero, Current N.J. Court Rules, Guideline 2 at 1143 (2014). In Caliguiri, the State argued that "if a defendant is presumptively ineligible for PTI for committing a crime that carries the second-degree presumption of incarceration, then a defendant must be completely ineligible for PTI when the crime . . . requires incarceration." Caliguiri, supra, 158 N.J. at 38-39. The Court rejected this argument, observing that, although N.J.S.A. 2C:43-12 creates rebuttable presumptions against eligibility for certain offenses, it does not render any offender "categorically ineligible." Id. at 39.

Guideline 2 in Rule 3:28 states in pertinent part:

When the application indicates factors which would ordinarily lead to exclusion under the guidelines established hereinafter, the applicant nevertheless shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the defendant's amenability to the rehabilitative process, showing compelling reasons justifying the defendant's admission, and establishing that a decision against enrollment would be arbitrary and unreasonable.

[Pressler and Verniero, supra, Guideline 2 (emphasis added).]

The Official Comment to this Guideline states, "each applicant for a PTI program is entitled to full and fair consideration of his or her application." Id. at comment on Guideline 2. Moreover, Guidelines 6 and 8 establish the procedures for an unsuccessful applicant's challenge to a rejection by the criminal division manager or the prosecutor's consent to enrollment. See id. at Guidelines 6 and 8.

As defendant argues, our decision in Green is instructive here. Like this case, there was a policy followed in the vicinage that precluded certain defendants from filing applications for PTI, i.e., the criminal division manager's office would not accept applications from defendants charged with certain offenses unless the prosecutor's office joined in the applications. Green, supra, 407 N.J. Super. at 96-97. Although the policy changed while defendant's case was pending in the trial court, it did not appear that he had been given the benefit of the new policy. Id. at 99. We remanded the case with the direction that he be permitted to apply to PTI. Ibid.

The State petitioned for certification from our decision and filed a motion to supplement the record with materials intended to show that defendant had been permitted to apply for PTI under the new policy. The Supreme Court granted the motion and remanded the case to us to reconsider in light of the supplemental materials, which provided information about the new procedure adopted by the vicinage PTI program and the history of Green's application process. Green, supra, 200 N.J.at 471.

Under the new procedure, defendants deemed "'conditionally ineligible' for PTI were given a document intended to advise them of their right to apply to PTI." Green, supra, 413 N.J. Super.at 558. The form, captioned "Notice of Pretrial Intervention (PTI) Ineligibility," advised the applicant at the outset: "Your case has been pre-screened by the Monmouth Vicinage Criminal Division and found to be ineligiblepursuant to R.3:28." Ibid.(emphasis added). The form advised further that if the defendant "still wish[ed] to apply for PTI and ha[d] compelling reasons to do so," "the prosecutor must join in the application in writing, or '[i]f the Prosecutor does not join in, . . . compelling reasons must be submitted justifying your admission.'" Id.at 558-59.

In that case, the criminal division allowed Green to submit a PTI application after he filed a motion to compel it to accept and process his application. After reviewing the process that followed, we concluded there was "no indication on this record that the criminal division manager ever considered the merits of the application, including defendant's statement of compelling reasons and supporting documentation, or the prosecutor's evaluation of the application." Id.at 560. Accordingly, we reversed and remanded for further proceedings.

We adhere to the principles articulated in Green and conclude, further, that the letter from the program director here did not reflect a consideration of a PTI application on the merits. As we stated,

Our point is simply that the court's PTI program must actually consider the merits of the defendant's application and provide a recommendation based on that consideration. The criminal division may not "defer" to the prosecutor in the sense of declining in advance to give any consideration to the merits of a defendant's application unless the prosecutor joins in the application. The latter form of "deference" gives the prosecutor complete control over the PTI application process, while abdicating the role of the court-managed PTI program in evaluating PTI applications. It also deprives the Law Division judge of the criminal division manager's independent evaluation of the application, in case there is a PTI appeal.

[Id. at 560-61.]

Here, both the prosecutor and the PTI program provided reasons why defendant should be denied admission to the program. However, those statements cannot be considered the product of a consideration of the merits of defendant's application simply because defendant was never permitted to submit an application which, as the trial court observed, he had the absolute right to do. The prosecutor's exercise of a gatekeeper function, precluding defendant's admission based upon a vicinage policy amounts to a clear error in judgment that subverts the goals of the PTI program. Moreover, since defendant was not permitted to submit an application, his motion was not properly considered as an appeal from a rejection of his application.

Therefore, we reverse the order denying defendant's motion to compel the State to allow him to apply for admission into the PTI program and remand so that he may file such an application, which shall be evaluated by the State and the PTI program in accordance with the procedure outlined in R. 3:28.

Reversed and remanded. We do not retain jurisdiction.

1 It is unclear from the record that defendant entered a conditional plea pursuant to R. 3:9-3(f). However, since the State has not argued that defendant waived his right to appeal from the denial of his motion, we address the appeal on its merits.