STATE OF NEW JERSEY v. A.M.S.

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NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

A.M.S.,

Defendant-Appellant.

_________________________________

May 27, 2015

Submitted April 22, 2015 Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 13-06-00338.

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

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Michael J. Forte, Assistant Prosecutor, Designated Counsel, on the brief).

PER CURIAM

Defendant A.M.S. appeals from the order of the Criminal Part upholding the decision of the Salem County Prosecutor's Office to reject defendant's application for admission into the Pretrial Intervention Program (PTI), N.J.S.A. 2C:43-12 to -22; R. 3:28. After reviewing the record before us, we affirm. As required under Rule 3:28, Guideline 2, defendant has not shown compelling reasons rebutting the presumption against his admission into PTI.

I

We derive the following facts from the record developed at the evidentiary hearing conducted by the court to adjudicate defendant's motion challenging the constitutionality of the search and seizure of the handgun that formed the basis for the charges brought against him. Borough of Pennsgrove Patrolman Joseph DiCarlois was the only witness to testify at the suppression hearing. The court ultimately denied defendant's motion.

DiCarlois testified that on March 30, 2013, he was one of approximately ten Pennsgrove police officers assigned to patrol a social function at the Elks Lodge. His principal responsibility was to monitor the crowd to make sure there were no disturbances. DiCarlois estimated there were between 200 and 250 people in attendance that night. Defendant was one of the attendees.

At approximately one o'clock in the morning, DiCarlois positioned himself inside a vacant house adjacent to the Elks Lodge to monitor the parking lot as the crowd was "letting out of the party," which he estimated had decreased to approximately 200 people by this time. At this point, DiCarlois noticed "a fight on the west side of the parking lot." He saw a man "pointing a gun in the vicinity of the crowd . . . threatening all the subjects." He also heard a man say, "I'm not scared of your heater;1 I got one, also." He then heard one of the others say, "I got something for you."

DiCarlois testified he saw another Pennsgrove police officer chase the man with the gun as he headed toward a white SUV that was pulling up behind the building. DiCarlois joined the chase of the man with the gun. When the man reached the SUV, he "threw the gun inside the vehicle . . . [through] [t]he rear driver-side door." The handgun landed "on the floor in the rear passenger-side floorboard." DiCarlois then tackled the man to the ground, handcuffed him, and placed him under arrest.

Approximately ten to fifteen minutes later, as the police officers were disbursing the crowd, a man, later identified as defendant, approached DiCarlois and told him the handgun was his. On these facts, defendant was arrested and charged with second degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Defendant and codefendant Faruq Burrell were thereafter indicted by a Salem County Grand Jury and charged with second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, second degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and fourth degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3 F. 2

Defendant applied for admission into PTI. After reviewing the application, the Salem County Criminal Division Case Manager's Office rejected defendant's PTI application. The Criminal Division Manager explained the basis for rejecting defendant's application in a statement of reasons dated August 6, 2013. He noted defendant had thirteen juvenile arrests and had been placed on probation by the Family Part in connection with five of these juvenile charges. As an adult, defendant had been arrested and convicted in the Superior Court of a disorderly conduct offense for which he was ordered to pay "mandatory fees."

After describing the facts leading to defendant's arrest on these charges, the Criminal Division Manager reached the following conclusion

You are applying to the PTI Program on what appears to represent your fifteenth encounter with the criminal justice system (13 juvenile arrests) and (2 adult arrests). You acknowledged that the handgun involved in this incident belonged to you. As a result, you have been charged with two 2nd Degree Weapons offenses, Possession of a Weapon for Unlawful Purpose and Unlawful Possession of a Weapon. For these reasons, the Program is compelled to conclude that your behavioral change/sufficient sanction needs are beyond the scope of P.T.I.'s sanctionless [sic] program. Therefore, you are felt to be an inappropriate candidate for P.T.I. diversion.

The record before us indicates defendant filed an appeal with the Superior Court challenging the denial of his application into PTI based only on the statement of reasons provided by the Criminal Division Manager. Despite the clear mandate of Rule 3:28(h),3 the prosecutor did not independently review defendant's application after the Criminal Division Manager's decision and report to defendant his view of the merits of defendant's application. The only time the prosecutor disclosed his reasons for opposing defendant's PTI application was in his September 10, 2013 written opposition to defendant's appeal to the Superior Court.

In his letter-brief to the PTI judge, the prosecutor described the facts leading to defendant's arrest and subsequent indictment, cited State v. Brooks, 175 N.J. 215, 225 (2002), and State v. Leonardis, 73 N.J. 360, 380 (1977), which recognized the prosecutor's discretionary authority in deciding "whom to divert and whom to prosecute," and emphasized the deferential standard of review a court must apply in deciding challenges to the prosecutor's decision to deny admission into PTI. The prosecutor emphasized to the trial judge that the charges against defendant

carry . . . a mandatory period of incarceration. Therefore, the PTI program is unavailable to the Defendant regardless of the Program Director's decisions. Further, under [Rule] 3:28, Guideline 3(i), an individual who has first or second degree charges against them creates a rebuttable presumption against admission into the same.

Here, the Defendant illegally purchased a firearm and stored the same in the rear seat of another individual's car. Further, that same illegal firearm was provided to the co-defendant who brandished the same at a crowd of people. These actions, along with the Program Director's basis for rejection, do not lend support to the Defendant being an appropriate candidate for the PTI Program.

Defendant's PTI appeal was heard by the trial court on the same day the court conducted the evidentiary hearing on the motion to suppress. In fact, the entire case was disposed of in a series of back-to-back hearings. The judge conducted the hearing on defendant's PTI appeal immediately after placing his reasons for denying defendant's motion to suppress orally on the record.

In the hearing on defendant's PTI appeal, defense counsel noted defendant was a twenty-four-year-old father of three children, an eight-year-old son and two daughters, ages six and two. He graduated from high school in Pennsylvania in 2008, and has settled with his family in Salem County. He had a substantial work history and, despite his juvenile record, had led a law-abiding life for a substantial period of time since reaching adulthood. Acknowledging defendant was charged with a Graves Act offense that requires a mandatory term of imprisonment if convicted, N.J.S.A. 2C:43-6c, defense counsel emphasized that Patrolman DiCarlois's testimony during the motion to suppress hearing made clear defendant did not physically possess the handgun at the time of his arrest.

The PTI judge denied defendant's appeal. The judge noted that N.J.S.A. 2C:43-12e requires the prosecutor and the Criminal Division Manager to consider seventeen individual factors "in formulating their recommendation of an applicant's participation in a supervisory treatment program." Although the judge did not mention any particular factor, he quoted from State v. Leonardis, 71 N.J. 85, 122 (1976), in which the Court noted a "[d]efendant's admission to a PTI program should be measured according to his amenability to correction, responsiveness to rehabilitation and nature of the offense with which he is charged."

The PTI judge noted that our Supreme Court has held that a prosecutor's decision to reject a defendant's admission into PTI should be overturned only if the judge finds a "patent and gross abuse of discretion."

To meet that standard a party must show that the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a clear error in judgment. Additionally, an abuse of discretion is patent and gross if it is shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention. If a prosecutor fails to consider all relevant factors or considers irrelevant factors, a court may remand the matter for further consideration. If a prosecutor commits a clear error of judgment, a court may order that a defendant be enrolled in PTI. Whether the prosecutor has based his or her decision on an appropriate factor, however, is akin to a question of law, a matter on which an appellate court may supplant the prosecutor's decision.

[State v. Nwobu, 139 N.J. 236, 247 (1995) (internal citations omitted) (internal quotation marks omitted).]

The PTI judge found defendant had failed to meet this high burden and denied his appeal. The court thereafter conducted a plea hearing in which defendant agreed to plead guilty to one count of second degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Based on the joint application by the Salem County Prosecutor's Office and defense counsel pursuant to N.J.S.A. 2C:43-6.2, the vicinage's Presiding Judge of the Criminal Division4 approved the provision in the plea agreement reducing the mandatory minimum term required under N.J.S.A. 2C:43-6c to one year. The Court thus sentenced defendant pursuant to the plea agreement to a term of five years, with one year of parole ineligibility.

II

Defendant now appeals raising the following argument

POINT I

THE REJECTION OF DEFENDANT'S PTI APPLICATION CONSTITUTED AN ABUSE OF DISCRETION, WHICH THIS COURT MUST CORRECT.

In light of the record before us, we discern no legal basis to conclude the trial court erred in upholding the prosecutor's rejection of defendant's PTI application. As recently reaffirmed by the Supreme Court,

[i]n considering and evaluating information bearing upon a defendant's admission into Pretrial Intervention, prosecutors are granted broad discretion to determine if a defendant should be diverted. This discretion arises out of the fundamental responsibility of prosecutors for deciding whom to prosecute. Accordingly, to overturn a prosecutor's decision to exclude a defendant from the program, the defendant must clearly and convincingly show that the decision was a patent and gross abuse of [] discretion.

[State v. K.S., 220 N.J. 190, 199-200 (2015) (internal citations omitted) (internal quotation marks omitted).]

Defendant was indicted and charged with unlawful possession of a handgun, a second degree crime that carries a presumption of incarceration and a mandatory minimum sentence if convicted. See N.J.S.A. 2C:43-6c. As the prosecutor noted, Rule 3:28, Guideline 3(i) establishes a rebuttable presumption against admission into PTI for those individuals charged with a first or second degree offense. Defendant bears the burden to rebut this presumption by producing "compelling reasons" to justify his admission into PTI. K.S., supra, 220 N.J. at 198. Here, defendant has not come forward with sufficient evidence to overcome this presumption.

Defendant's juvenile history included the imposition of probationary dispositions by the Family Part. This could only have occurred as a consequence of defendant being actually adjudicated delinquent, not just arrested on charges that were subsequently dismissed. Cf. id. at 202. The prosecutor thus properly considered defendant's juvenile record as a factor weighing against his admission into this adult diversionary program. Defendant has not demonstrated sufficient grounds for this court to overturn the decision of the PTI judge.

Affirmed.

1 According to DiCarlois, "heater" is a slang word for gun.

2 Codefendant Faruq Burrell was also charged in the indictment with third degree terroristic threats, N.J.S.A. 2C:12-3b, and second degree possession of a handgun by a person previously convicted of one or more of the offenses listed in N.J.S.A. 2C:39-7b.

3 Pursuant to Rule 3:28(h), "[t]he prosecutor shall complete a review of the application and inform the court and defendant within fourteen days of the receipt of the criminal division manager's recommendation."

4 Under N.J.S.A. 2C:43-6.2, only the vicinage's Assignment Judge has the legal authority to grant the prosecutor's motion to reduce to one year the mandatory minimum term of imprisonment during which defendant will be ineligible for parole. Here, the order granting this relief was signed by the Presiding Judge of Criminal. The record does not contain an explanation for this irregularity. To protect defendant against any potential future challenge to the legality of his sentence, we suggest the parties secure an order from the vicinage's Assignment Judge retroactively ratifying the order entered by the Presiding Judge of Criminal.