STATE OF NEW JERSEY v. ALLAN A. THOMPSON

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

ALLAN A. THOMPSON,

Defendant-Respondent.

_____________________________

February 11, 2014

Argued January 29, 2014 Decided

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-02-0364.

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney for appellant; Ms. Foddai, of counsel and on the brief).

Paul S. Chiaramonte argued the cause for appellant.

PER CURIAM

The State appeals from July 15, 2013 order reversing the prosecutor's rejection of defendant's application into the Pre-Trial Intervention (PTI) Program established pursuant to N.J.S.A. 2C:43-12 and Rule 3:28, and ordering defendant's enrollment into that program. We reverse and remand for further proceedings.

Defendant was involved in an automobile accident on the Garden State Parkway and sustained injuries. Emergency Medical Technicians (EMTs) arrived at the scene to provide medical attention, and as the EMTs assisted him, defendant stated to a nearby trooper that he possessed permits to carry a handgun. Defendant pulled from his pocket an unloaded nine-millimeter semi-automatic handgun, which he had previously stored in the glove compartment, and gave it to the trooper. Defendant also told the trooper that the handgun's magazine had fallen inside his automobile during the accident. The trooper saw the magazine, which was loaded with hollow point bullets, in plain view on the driver's side floor of defendant's vehicle.

Although defendant had permits to carry the firearm issued by the States of Pennsylvania and New York, he did not have a similar permit from New Jersey. The trooper informed defendant that it was illegal to carry a firearm on his person in New Jersey without a permit issued by this State, and arrested him for unlawful possession of a firearm under N.J.S.A. 2C:39-5b.

On February 28, 2013, a grand jury indicted defendant for second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and fourth-degree unlawful possession of hollow-nose bullets, N.J.S.A. 2C:39-3f. Defendant applied for admission into the PTI program and, on April 26, 2013, the criminal division manager, not the prosecutor, wrote defendant and stated in part that:

First and second degree crimes . . . are specific categories of offenses that establish a rebuttable presumption against admission of defendants into a PTI program. . . . PTI programs should ordinarily reject applications by defendants who fall within these categories unless the prosecutor has affirmatively joined in the application. A heavy burden rests with the defendant to present . . . (a) proof that the prosecutor has joined in the application and (b) any material that would otherwise rebut the presumption against enrollment. [R. 3:28,] Guideline 3[(i).]

[The] Assistant Prosecutor . . . has informed the PTI Director that the [S]tate is not joining in this application . . . and is not amending the charges to a lesser degree.

. . . [T]his office is not recommending your client for PTI enrollment[.]

In May 2013, defendant appealed from the PTI rejection pursuant to Rule 3:28(h). In June 2013, the State opposed the appeal, and for the first time provided defendant a legal basis for objecting to his admission into PTI.1 After considering oral argument from counsel, the judge overruled the prosecutor's objection and ordered defendant admitted into the PTI program. In his written decision, the judge concluded that the prosecutor abused his discretion and stated that:

The prosecutor simply denied defendant's entry into PTI because he was charged with a Graves Act offense.[2] The prosecutor's other reasons for objection to the entry [into the program] were either completely unsupported or[,] in the instance of N.J.S.A. 2C:43-12e(2), the facts of the case, [constituted] a clear error in judgment.

On appeal, the State argues the trial judge improperly substituted his judgment for that of the prosecutor, and erred by finding that the rejection of defendant from the program constituted a patent and gross abuse of discretion.

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:43-12b. "Admission [into the PTI program] 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)). A determination whether to admit a defendant is "'primarily individualistic in nature,' and 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 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). In determining eligibility, prosecutors must consider the factors in N.J.S.A. 2C:43-12 and Rule 3:28, and the accompanying Guidelines, which "elucidate the purposes, goals, and considerations relevant to PTI." Negran, supra, 178 N.J. at 80-81 (internal quotation marks and citation omitted).

A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his 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.

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. (citations omitted); see Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). It has been long-established that the scope of judicial review of a prosecutor's decision to reject a defendant's application into PTI is "severely limited." Negran, supra, 178 N.J. at 82. In fact, our level of deference in this area is characterized as "extreme" because the power to prosecute a defendant charged with a crime is constitutionally entrusted to the executive branch. Nwobu, supra, 139 N.J. at 246 (quoting Kraft, supra, 106 N.J. Super. at 112).

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 (internal quotation marks and citation 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.

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. The State considered defendant's PTI application pursuant to N.J.S.A. 2C:43-12, Rule 3:28, and the accompanying Guidelines. In addition to reviewing materials that defendant submitted with his PTI application, the prosecutor considered the following criteria: "[t]he nature of the offense" (N.J.S.A. 2C:43-12e(1)); "[t]he facts of the case" (N.J.S.A. 2C:43-12e(2)); "[t]he needs and interests of the victim and society" (N.J.S.A. 2C:43-12e(7)); whether "the value of supervisory treatment would be outweighed by the public need for prosecution" (N.J.S.A. 2C:43-12e(14)); and "[w]hether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program" (N.J.S.A. 2C:43-12e(17)). The prosecutor correctly recognized that defendant was presumptively ineligible for admission into the PTI program, and concluded that defendant failed to demonstrate "compelling reasons" to rebut that presumption. See R. 3:28, Guideline 3(i).

In balancing all the relevant factors, the State also considered and rejected defendant's purported explanation for placing the handgun in the glove box of the vehicle. Defense counsel stated to the judge that defendant stored the handgun in the glove compartment because the trunk of the vehicle was filled with groceries. Defense counsel maintained that defendant would normally secure his firearm in a briefcase and store the briefcase in the trunk of the vehicle. However, this argument cuts both ways. From these same facts, the prosecutor concluded that defendant was familiar with the law regarding proper transfer of weapons. The prosecutor maintained that defendant's decision on the day of the accident to transport the handgun and loaded magazine in an area of the vehicle readily accessible to him was not inadvertent, but indicative of a knowing and intentional act to violate our State's gun laws.

Finally, defendant alleged that on the day of the accident, he planned to visit his daughter in Delaware. Defense counsel argued to the trial judge that, on the way to Delaware, defendant wanted to secure the handgun in Allentown, Pennsylvania. The prosecutor was also entitled to question the veracity of defendant's purported purpose to travel to his residence in Pennsylvania because he could have easily left the handgun at his residence in New York rather than deliver a loaded weapon to his residence in Allentown, Pennsylvania, a location which is not on the way to where his daughter resided.

In this light, the judge erred by effectively substituting his own judgment for that of the prosecutor. Accordingly, we reverse the order under appeal and remand the matter to the Law Division for further proceedings.

1 At oral argument before us, defense counsel acknowledged that despite the prosecutor's initial failure to provide a statement of reasons to substantiate his objection to defendant's admission into PTI, the prosecutor's subsequent submission to the trial court corrected this problem, thus obviating a remand for the trial court to address this limited issue. We nevertheless take this opportunity to emphasize that a prosecutor is required to "provide a criminal defendant with a statement of reasons justifying [the] PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." State v. Wallace, 146 N.J. 576, 584 (1996). This statement "facilitates effective judicial review, . . . assists in evaluating the success of the PTI program, . . . affords the defendant an opportunity to prepare a response, . . . [and] dispels suspicions of arbitrariness." Ibid.

2 N.J.S.A. 2C:43-6c.