STATE OF NEW JERSEY v. RAUL N. BERMAN

NOT FOR PUBLICATION WITHOUT THE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.

RAUL N. BERMAN,

Defendant-Appellant.

________________________________________________________________

November 5, 2014

Submitted July 1, 2014 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-03-0642.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Thomas N. Zuppa, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

In this appeal, defendant argues that the rejection of his application for pretrial intervention (PTI) was a patent and gross abuse of discretion, requiring reversal and a remand for reconsideration and his admission into PTI.

On November 26, 2011, defendant and his co-defendants emptied a ShopVac box at a Walmart, filled it with a number of electrical devices and attempted to leave the store without paying for the merchandise, which had a value that exceeded five hundred dollars. They were apprehended immediately and all the items were recovered. Defendant was indicted for third-degree shoplifting, N.J.S.A. 2C:20-11, and applied for PTI.

A PTI Recommendation form stamped June 20, 2012 reflects the probation officer's belief that the offense was "an isolated incident" and the recommendation that defendant be admitted to PTI. While his application was pending, defendant was arrested in September 2012 on another shoplifting charge.

Upon review and evaluation of the application, the prosecutor refused to consent to his admission into the PTI program and provided the following reasons

1. The nature of the offense. The defendant conspired with two other defendants to shoplift items from Walmart.

2. His involvement with others requires processing this case through traditional criminal justice system procedures.

3. Participation in PTI would adversely affect the prosecution of the co-defendants.

4. The defendant was arrested September 15, 2012 in Essex County on a new charge of shoplifting.

Defendant entered a guilty plea to fourth-degree shoplifting pursuant to a plea agreement while preserving his right to appeal from the PTI rejection. The Essex County shoplifting charge was resolved by a guilty plea to a disorderly persons offense of shoplifting in December 2012.

As of the time the trial court heard defendant's appeal, one of his codefendants had pled guilty and the other was a fugitive. Defense counsel argued that defendant's actions were the result of "harsh economic constraints" and unlikely to recur because he was "now gainfully employed." The trial court rejected defense counsel's argument, observing that the subsequent shoplifting charge was "not just grabbing stuff off the shelf. It seems fairly sophisticated. He's got some kind of device that desensitizes the sensors that prevents shoplifting." The court found the State's decision to reject defendant's PTI application was not an abuse of discretion; that the factors relied upon were "legitimate, particularly in light of" his subsequent shoplifting arrest. The court concluded

PTI is for people who make a mistake and recognize their mistake. This is making a mistake and saying, let me try it again . . . . I'm just not satisfied whatsoever that he's entitled to PTI.

The court sentenced defendant on April 5, 2013 to probation for one year. This appeal followed.

Our review of a prosecutor's decision to reject an applicant from PTI is "severely limited," and serves "to check only the most egregious examples of injustice and unfairness." State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)) (citations omitted). This is because

[The PTI] decision lies, in the first instance, with the prosecutor, and once he has determined that he will not consent to the diversion of a particular defendant, his decision is to be afforded great deference. In fact, the level of deference which is required is so high that it has been categorized as "enhanced deference" or "extra deference."

[Ibid.]

To overcome a prosecutorial veto, a defendant must "'clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI] program was based on a patent and gross abuse of his discretion'" Id. at 246 (quoting Kraft, supra, 265 N.J. Super. at 112). To demonstrate an abuse of discretion, a defendant must 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. Negran, 178 N.J. 73, 83 (2003) (quoting State v. Bender, 80 N.J. 84, 93 (1979)) (citation omitted). To rise to the level of a "patent and gross" abuse of discretion, an additional factor must be satisfied. "[I]t must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Ibid.

The Supreme Court has set forth the underlying policies and procedures to be followed in Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler and Verniero, Current N.J. Court Rules, (2014) (Guidelines). Guideline 1 identifies five purposes of PTI

(1) to enable defendants to avoid ordinary prosecution by receiving early rehabilitative services expected to deter future criminal behavior; (2) to provide defendants who might be harmed by the imposition of criminal sanctions with an alternative to prosecution expected to deter criminal conduct; (3) to avoid burdensome prosecutions for "victimless" offenses; (4) to relieve overburdened criminal calendars so that resources can be expended on more serious criminal matters; and (5) to deter future criminal behavior of PTI participants.

[Nwobu, supra, 139 N.J. at 247 (citing Rule 3:28)].

Defendant has not argued that the prosecutor's rejection of his PTI application subverted any of these goals.

On appeal, defendant does not contend that any of the factors cited by the prosecutor were irrelevant. To support his claim that the prosecutor's rejection constitutes an abuse of discretion, he submits that two of the factors relied upon by the prosecutor - the involvement of others and the potential negative impact on the prosecution of them - should not be given any weight in light of the facts as they existed at the time of the appeal. He argues that his additional shoplifting charge was given undue weight, resulting in his disqualification from consideration. Defendant argues that the prosecutor failed to seriously consider his personal attributes in making the decision to reject his application. Specifically, he states that, at the time of his appeal, he was thirty years old without "any significant prior record, and who remained arrest-free from 2008 until the instant offense[,]" and that he presented a credible claim that he committed the offense due to his unemployment.

The thrust of defendant's argument is that the prosecutor's rejection constituted an abuse of discretion because there was a failure to consider all relevant factors, specifically his lack of a significant criminal record and the fact that his unemployment contributed to his offense. He further challenges the prosecutor's rejection letter as insufficient to satisfy the requirement that he be provided with an individualized assessment of the factors relevant to his application. See N.J.S.A. 2C:43-12f; Guideline 8.

We agree that the letter is flawed in failing to make any mention of defendant's personal attributes. However, although the rejection letter did not address each of the factors identified in the Guidelines, it did "note the factors present in defendant's background or the offense purportedly committed which led [the prosecutor] to conclude that admission should be denied[,]" Nwobu, supra, 139 N.J. at 249 (quoting State v. Sutton, 80 N.J. 110, 117 (1979)); with "sufficient specificity so that defendant has a meaningful opportunity to demonstrate that they are unfounded." Ibid. (quoting State v. Maddocks, 80 N.J. 98, 109 (1979)).

As we have noted, defendant does not argue that reliance upon his subsequent shoplifting offense was unfounded; he argues that factors favoring his admission were not given adequate consideration. We disagree. The absence of a significant prior record does not distinguish defendant's application from that of other eligible applicants. Although unemployment poses an undeniable challenge, we cannot endorse defendant's implicit premise that unemployment, standing alone, provides a "compelling reason[]" for committing a crime that should be considered beyond Guideline 3(i). See State v. Mickens, 236 N.J. Super. 272, 279 (App. Div. 1989). We therefore conclude that defendant has failed to show the rejection of his PTI application constituted an abuse of discretion, let alone the patent and gross abuse of discretion required to set aside the prosecutor's decision here.

Affirmed.