STATE OF NEW JERSEY v. DARLENE FLOYD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01189-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARLENE FLOYD,

Defendant-Appellant.

________________________________________________________________

February 11, 2016

Submitted February 2, 2016 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-10-1302.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After being indicted for third degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), and fourth degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(b),1 defendant Darlene Floyd applied for admission to the pre-trial intervention (PTI) program, N.J.S.A. 2C:43-12. The program director did not recommend her admission and the prosecutor denied her application, citing to, among other negative criteria, her criminal record, which contained three prior out-of-state arrests, one of which resulted in a misdemeanor conviction for possession of a controlled dangerous substance in 1998.

Defendant challenged her rejection from the program and, in an ensuing hearing in the Law Division, the prosecutor repeated his reliance on those arrests as part of his reasons for rejecting the application. After the hearing, the court agreed with the prosecutor that reliance on the arrests was proper and found that defendant failed to prove "by clear and convincing evidence that the State's decision to reject her PTI application was a patent and gross abuse of discretion."

Defendant pled guilty to the fourth degree charge pursuant to a plea agreement, and the court entered a judgment of conviction after sentencing her to a probationary term. This appeal followed.

Defendant appeals the denial of her PTI application, arguing that the prosecutor's reliance on her three arrests was improper. She cites to the Supreme Court's holding in State v. K.S., 220 N.J. 190 (2015). In that case the Court held "[f]or . . . prior dismissed charges to be considered properly by a prosecutor in connection with [a PTI] application, the reason for consideration must be supported by undisputed facts of record or facts found at a hearing. [When n]either are present . . . prior dismissed charges may not be considered for any purpose." Id. at 199. Defendant also relies on the Court's opinion in State v. Negran, 178 N.J. 73 (2003), which she argues prevents the prosecutor from relying upon "stale prior infractions" in rejecting applications for PTI.

The prosecutor contends that his "rejection of defendant's PTI application was not a patent and gross abuse of discretion," though he recognizes that his consideration of the two challenged arrests that did not result in convictions was "improper." He also argues that the reliance upon the out-of-state misdemeanor conviction was proper because defendant admitted to using drugs prior to her arrest on the subject charges. As a result, he argues, the conviction was a proper consideration, despite being "temporally distant," because it was "part of a continuing pattern of anti-social behavior" by defendant, which is one of the express considerations for admission to PTI. See Negran, supra, 178 N.J. at 85; see also N.J.S.A. 2C:43-12(e)(8).

We have considered the parties' contentions in light of our review of the record and applicable legal principles. We reverse and remand for reconsideration of defendant's PTI application.

In our review, we extend "enhanced" deference to the prosecutor's decision. Negran, supra, 178 N.J. at 82 (quoting State v. Baynes, 148 N.J. 434, 443 (1997)). The court's "severely limited" scope of review is designed to address "only the 'most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

Although the prosecutor's discretion is not unlimited, we will rarely overturn the rejection of a PTI applicant. State v. Brooks, 175 N.J. 215, 225 (2002), overruled in part by K.S., supra, 220 N.J. at 199. However, "[i]ssues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law,'" State v. Maddocks, 80 N.J. 98, 104 (1979), so we are "free to substitute [our] independent judgment for that of the trial court or the prosecutor should [we find] either to have been in error." Id. at 105; see also K.S., supra, 220 N.J. at 199; Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). While we exercise de novo review over the propriety of considering a certain PTI factor, we still afford prosecutors "broad discretion to determine if a defendant should be diverted." K.S., supra, 220 N.J. at 199. "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.'" Id. at 200 (alteration in original) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)).

The PTI statute requires prosecutors to consider a non-exclusive list of seventeen criteria. See N.J.S.A. 2C:43-12(e). "Ordinarily, an abuse of discretion will be manifest if defendant can 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 of judgment." State v. Bender, 80 N.J. 84, 93 (1979); see also State v. Roseman, 221 N.J. 611, 625 (2015).

Applying these principles, we conclude that the trial judge erred in sustaining the prosecutor's rejection of defendant's application. We agree with defendant that, as recognized by the prosecutor, the reliance on the two arrests without convictions was "improper" and in contravention of the Court's holding in K.S. We also conclude that, while an out-of-state misdemeanor conviction can be considered by the prosecutor, a fifteen-year-old misdemeanor conviction is too stale and cannot be considered. See Negran, supra, 178 N.J. at 84-85 (concluding that a defendant's past driving record may be relevant when considering whether a "pattern of anti-social behavior" exists); see also K.S., supra, 220 N.J. at 201.

The judgment of conviction is vacated, the denial of defendant's challenge to the rejection of her PTI application is reversed and the matter is remanded for reconsideration of defendant's PTI application by the director and prosecutor. See K.S., supra, 220 N.J. at 200 ("Remand is the proper remedy when, for example, the prosecutor considers inappropriate factors, or fails to consider relevant factors."). We do not retain jurisdiction.

1 The facts supporting defendant's indictment are immaterial to our decision. Suffice it to say defendant was the caregiver for her elderly victim. The charges arose from defendant's "borrowing" of her victim's Mercedes Benz automobile, without the owner's permission. The car was ultimately recovered.