STATE OF NEW JERSEY v. R.P.M.

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NOT FOR PUBLICATION WITHOUT THE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.

R.P.M.,

Defendant-Respondent.

_______________________________

September 15, 2016

Submitted June 1, 2016 Decided

Before Judges Hoffman and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 15-07-2187.

Mary Eva Colalillo, Camden County Prosecutor, attorney for appellant (Joseph J. MacNamara, Assistant Prosecutor, of counsel and on the brief).

Louis N. Caggiano, Jr., attorney for respondent.

PER CURIAM

The State appeals the trial court's December 4, 2015 order granting defendant R.P.M.'s application for admission into pre-trial intervention (PTI) over the prosecutor's objection. We affirm.

I.

Defendant is seventy-one years old and is the caretaker for his sixty-three-year-old brother D.M. D.M. is blind and mentally disabled.1 At about 6:30 p.m. on May 10, 2015, the police received a call that a blind man had been sitting in a pickup truck with the doors and windows closed for at least one hour. The caller stated that she could hear the man yelling "get me out of here."

Officer Harman was dispatched and discovered D.M. sitting in the truck's front passenger seat with the doors closed and only the passenger window cracked about one inch. D.M. was shaking and sweating profusely. The temperature that day was over eighty degrees outside, and substantially hotter inside the truck.

When Officer Harman opened the door of the truck, D.M. stated "I almost died." D.M. was wearing long pants and a long-sleeve shirt, both of which were drenched in sweat. D.M. told Harman defendant had left him in the truck and was probably inside their residence. Harman knocked on the front door of the residence. After several knocks, defendant answered and said D.M. had "only been in the truck about an hour."

Defendant told Officer Harman that he and D.M. had been running errands in the truck all day and that when they arrived home D.M. refused to take his seatbelt off. As a result, defendant left him in the truck. Defendant told Harman that D.M. knew how to roll down the window if he was hot. Harman then asked defendant for a glass of water for D.M. Defendant responded D.M. "could get it himself."

While Officer Harman was speaking with defendant, the fire department arrived, evaluated D.M. for dehydration, and determined he should be taken to the hospital. Defendant then produced his power of attorney for D.M., and refused to allow D.M. to be transported to the hospital. After learning that defendant would be charged, Harman arrested defendant. Upon being arrested, defendant allowed D.M. to be transported to the hospital, where he received fluids intravenously for dehydration. Defendant was indicted and charged with third-degree neglect of the elderly or disabled, N.J.S.A. 2C:24-8(a).

Defendant applied for PTI. The prosecutor denied defendant's request on recommendation of the criminal division manager. Defendant appealed the prosecutor's determination to the Law Division on September 18, 2015. The trial court ruled that the prosecutor improperly treated the alleged offense as a crime "of an assaultive or violent nature," N.J.S.A. 2C:43-12(e)(10) (factor (10)), and had failed to consider "[t]he desire of the complainant or victim to forego prosecution," N.J.S.A. 2C:43-12(e)(4) (factor (4)). The court remanded the case to the prosecutor for reconsideration. The prosecutor again denied defendant's application, again mistakenly relying on factor (10), and again failing to determine whether the victim desired to forego prosecution under factor (4). The prosecutor added "that even if the victim desires to see the prosecution of the matter foregone, . . . this factor would be accorded little weight." Defendant again appealed.

Just before the remand hearing on December 4, 2015, the prosecutor's agent telephoned D.M. and determined D.M. desired defendant receive PTI. However, the prosecutor accorded this factor "minimal weight." The prosecutor argued that the relationship between the brothers was akin to a domestic violence relationship, and that D.M. suffered from mental disabilities. The trial court believed that domestic violence cases were distinguishable, and that factor (4) was entitled to "greater weight" even if the victim "has limitations." The court ruled the prosecutor erred in again relying on factor (10). The court granted defendant's motion to appeal the denial of PTI, admitting defendant into PTI.

The State appeals, arguing

Point I The State's analysis of the appropriate and relevant factors in assessing defendant's admission to PTI did not amount to a clear error in judgment and was not a patent and gross abuse of discretion.

Point II [The trial court] erred in finding that N.J.S.A.2C:43-12(e)(10) was not implicated as a matter of law.

Point III [The trial court] erred in finding that the State did not afford enough weight to the desire of [D.M.] to Forego prosecution.

II.

"Deciding whether to permit diversion to PTI 'is a quintessentially prosecutorial function.'" State v. Waters, 439 N.J. Super. 215, 225 (App. Div. 2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)). "'Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options.'" State v. Nwobu, 139 N.J. 236, 246 (1995) (citation omitted). Accordingly, "prosecutors are granted broad discretion to determine if a defendant should be diverted" to PTI rather than prosecuted. State v. K.S., 220 N.J. 190, 199 (2015).

"Thus, the scope of review is severely limited." State v. Negran, 178 N.J. 73, 82 (2003). Reviewing courts must accord the prosecutor "'extreme deference.'" Nwobu, supra, 139 N.J. at 246 (citation omitted). "In 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.'" State v. Watkins, 193 N.J. 507, 520 (2008) (citation omitted). "A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Ibid. (citation omitted). "Judicial review serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

"We must apply the same standard as the trial court. Therefore, we review the [trial court]'s reversal of the prosecutor's decision de novo." Waters, supra, 439 N.J. Super. at 226. We must hew to that standard of review.

III.

The PTI program is governed by N.J.S.A. 2C:43-12 to -22, Rule 3:28, and the Guidelines for Operation of Pretrial Intervention in New Jersey (Guidelines), reprinted after Rule 3:28 in Pressler & Verniero, Current N.J. Court Rules (2016).

Guideline 3 lists a number of factors to be considered when assessing a PTI application. Pursuant to Guideline 3(i), the nature of the offense must be considered and a PTI application "should generally be rejected" if the defendant's crime was: "(1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust."

[Nwobu, supra, 139 N.J. at 248 (footnote omitted).]

Likewise, "N.J.S.A. 2C:43-12(e) lists seventeen non-exclusive factors to be considered by the criminal division manager and prosecutor in determining admission into [PTI]." K.S., supra, 220 N.J. at 197. Courts must "presume that a prosecutor considered all relevant factors, absent a demonstration by the defendant to the contrary." Wallace, supra, 146 N.J. at 584.

"Even if a '"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 in judgment,"' that constitutes only '"an abuse of discretion."'" Waters, supra, 439 N.J. Super. at 235-36 (quoting Wallace, supra, 146 N.J. at 583). "'In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying [PTI].'" Wallace, supra, 146 N.J. at 583 (citation omitted). "Where a defendant can make that showing, a trial court may admit a defendant, by order, into PTI over the prosecutor's objection." State v. Roseman, 221 N.J. 611, 625 (2015).

Thus, a "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." Watkins, supra, 193 N.J. at 520.

However, where the prosecutor has made a legal error, there is a relatively low threshold for judicial intervention because "[t]hese instances raise issues akin to questions of law, concerning which courts should exercise independent judgment in fulfilling their responsibility to maintain the integrity and proper functioning of PTI as a whole."

[Id. at 520-21 (alteration in original) (citation omitted).]

Here, the prosecutor initially denied defendant's application for admission into PTI based on five of the statutory factors contained in N.J.S.A. 2C:43-12(e), factors (1), (2), (7), (10), and (14).2 The trial court found factors (1), (2), (7), and (14) were relevant and appropriate. However, the court remanded the case to the prosecutor for reconsideration after finding that N.J.S.A. 2C:43-12(e)(10) (factor (10)) did not apply and that N.J.S.A. 2C:43-12(e)(4) (factor (4)) may apply. After remand, the court granted PTI because the prosecutor continued to rely on factor (10) and gave "minimal weight" to factor (4).

IV.

Factor (10) requires prosecutors to consider "[w]hether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior." N.J.S.A. 2C:43-12(e)(10). On both of defendant's appeals of the prosecutor's PTI denials, the trial court ruled as a matter of law that factor (10) did not apply because "the conduct alleged to have taken place here is not assaultive or violent in its nature." The State argues the court misinterpreted the statute.

Our review of the trial court's statutory interpretation of N.J.S.A. 2C:43-12(e)(10) is "de novo." State v. Olivero, 221 N.J. 632, 638 (2015). In statutory interpretation, our task "'is to discern and give effect' to the Legislature's intent. To begin, we look at the plain language of the statute." State v. Munafo, 222 N.J. 480, 488 (2015) (citation omitted). "Statutory language is to be interpreted 'in a common sense manner to accomplish the legislative purpose.'" Olivero, supra, 221 N.J. at 639 (citation omitted). "We do not support interpretations that render statutory language as surplusage[.]" Burgos v. State, 222 N.J. 175, 203 (2015), cert. denied, 136 S. Ct. 1156 (2016). "If the language is unclear, courts can turn to extrinsic evidence for guidance, including a law's legislative history. But a court may not rewrite a statute or add language that the Legislature omitted." Munafo, supra, 222 N.J. at 488 (citation omitted).

The State argues factor (10) does not require the crime to be "of an assaultive or violent nature." N.J.S.A. 2C:43-12(e)(10). Rather, the State argues factor (10) is satisfied if the crime had "possible injurious consequences." Ibid. We disagree with the State's interpretation.

The plain language of factor (10) requires that the crime be either assaultive or violent. The Legislature explained that a crime can be found to be assaultive or violent based on either "the criminal act itself or . . . the possible injurious consequences of such behavior." Ibid. As our Supreme Court has stated, factor (10) applies if "the crime is assaultive or violent in nature or in possible injurious consequences." State v. Bell, 217 N.J. 336, 340 (2014) (emphasis added).

Moreover, case law illustrates that the crime must be assaultive or violent either in the criminal act itself or in the possible injurious consequences. See, e.g., K.S., supra, 220 N.J. at 194, 197, 201 (citing factor (10) where the defendant "struck and attempted to spit blood from a cut lip onto the arresting officer"); Bell, supra, 217 N.J. at 339-40 (citing factor (10) where the defendant was charged with aggravated assault); State v. DeMarco, 107 N.J. 562, 565, 567-68 (1987) (citing factor (10) in discussing a police officer-defendant's violent and improper use of his nightstick); State v. Hoffman, 399 N.J. Super. 207, 214, 215-16 (App. Div. 2008) (finding factor (10) applied where the defendant brandished knives and threatened to kill police officers, and "the threat of violence was undoubtedly present"); State v. Motley, 369 N.J. Super. 314, 318, 321-22 (App. Div. 2004) (refusing to overturn a prosecutor's finding that "possession of high power illegal weapons is assaultive not in the criminal act but in the possible injurious consequences of such behavior").

By using the words "assaultive or violent," the Legislature did not restrict factor (10) to the crimes of "simple assault" or "aggravated assault" as defined in N.J.S.A. 2C:12-1.3 Nor did the Legislature incorporate the definition of a crime that "involves violence or the threat of violence," as defined "[f]or purposes of . . . subparagraph" N.J.S.A. 2C:43-12(b)(2)(b).4

Thus, we must give these words "their generally accepted meaning." N.J.S.A. 1:1-1. In 1979, when N.J.S.A. 2C:43-12(e)(10) was enacted, "assaultive" was defined as "inclined toward or disposed to committing assault." Webster's Third New International Dictionary 130 (1971). "[A]ssault" was principally defined as "a violent attack with physical means," ibid., or "[a]ny willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do," Black's Law Dictionary 105 (5th ed. 1979). "Violent" was commonly defined as "[m]oving, acting, or characterized, by physical force, especially by extreme and sudden or unjust or improper force." Id. at 1408; see Webster's, supra, at 2554.

Here, the State concedes there were no assaultive or violent actions taken by defendant. Defendant did not use or threaten to use physical force. There is no claim that defendant willfully attempted to inflict injury on D.M.

The State argues that defendant suffered dehydration and could have suffered worse "possible injurious consequences." N.J.S.A. 2C:43-12(e)(10). However, dehydration, or the possibility of heat exhaustion, is not a normal injurious consequence of assaultive or violent acts or crimes.

There is no indication in the statutory text or legislative history that the Legislature intended any "possible injurious consequences" to make factor (10) applicable. Such a reading would decouple factor (10) from "assaultive or violent" crimes. It would transform it to a factor weighing against PTI for essentially every crime, given the broad definitions of injurious and injury. "Injurious" was defined as "inflicting or tending to inflict injury," and "injury" was defined as "an act that damages, harms, or hurts[;] an unjust or undeserved infliction of suffering or harm," or "a violation of another's rights for which the law allows an action to recover damages or specific property or both." Webster's, supra, at 1164.

"Issues concerning the propriety of the prosecutor's consideration of a particular factor are akin to 'questions of law'; their resolution merely requires a determination as to whether that factor was legally cognizable given the underlying policies of PTI." State v. Maddocks, 80 N.J. 98, 104-05 (1979). We agree with the trial court that factor (10) was not legally cognizable here.

V.

Thus, the prosecutor erred by denying PTI based on an irrelevant and inappropriate factor, namely N.J.S.A. 2C:43-12(e)(10). Generally, "[r]emand [for further consideration] is the proper remedy when, for example, the prosecutor considers inappropriate factors, or fails to consider relevant factors." K.S., supra, 220 N.J. at 200. "A remand to the prosecutor affords an opportunity to apply the standards set forth by the court 'without supplanting the prosecutor's primacy in determining whether [PTI] is appropriate in individual cases.'" Ibid. (citation omitted).

However, the trial court already gave the prosecutor the opportunity for further consideration on remand. At the November 13, 2015 hearing, the court ruled that "factor ten does not apply in this instance," remanded the case to the prosecutor, and ordered the prosecutor "to not consider statutory factor ten" on remand.

Nonetheless, on remand, the same assistant prosecutor again relied on factor (10) in denying PTI. The prosecutor's letter brief to the trial court did not acknowledge the court's prior ruling but argued anew that factor (10) applied.

On appeal after remand, the trial court rejected the prosecutor's position and ordered defendant admitted into PTI. The court again ruled "that Statutory Factor 10 does not apply in this case." We condemn the prosecution's failure to follow the trial court's earlier ruling.

Our Supreme Court faced a similar situation in State v. Baynes, 148 N.J. 434 (1997). There, the prosecutor denied PTI by invoking a per se rule based on the type of crime. Id. at 440. The trial court correctly remanded because the prosecutor had failed to consider all appropriate factors. Ibid. On remand, the prosecutor "effectively denied Baynes's application" on the same basis. Id. at 445. Finding "Baynes's admission into PTI fulfills all five of its purposes," the Court held that the prosecutor's rejection "was a patent and gross abuse of discretion. Accordingly, the trial court correctly ordered Baynes's admission into the program." Id. at 451; see also State v. Dalglish, 86 N.J. 503, 510 (1981) (noting that remand "would be inappropriate if the prosecutor is unlikely to reconsider his position").

Given the prosecution's intransigence here, "[i]t is unlikely" that another "remand would serve a useful purpose." See Wallace, supra, 146 N.J. at 584. In any event, where "circumstances show clearly and convincingly that there has been a patent and gross abuse of discretion by the prosecutor which constituted a clear error in judgment that will '"subvert the goals underlying"' PTI, remand is inappropriate." Roseman, supra, 221 N.J. at 630 (citations omitted) (compelling the defendant's admission into PTI).

The trial court found there was "clear and convincing evidence" that the prosecutor's decision was a patent and gross abuse of discretion because it "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." See Watkins, supra, 193 N.J. at 520 (quoting Wallace, supra, 146 N.J. at 582-83). First, the court noted the prosecutor's continuing improper reliance on factor (10).

Second, the court cited the undisputed "desire of the complainant or victim to forego prosecution." N.J.S.A. 2C:43-12(e)(4). The court thought factor (4) was entitled to "greater weight." However, the Legislature intended to "'leave the weighing process to the prosecutor.'" Waters, supra, 439 N.J. Super. at 234 (citation omitted). Nonetheless, we are troubled by the prosecutor's decision to accord this factor "little weight" even before speaking with the victim.

Third, the court found that "the victim ends up worse off . . . . [i]f the care giver of the last 40 years winds up having to go through the remainder of his life with a criminal conviction that he may never be able to expunge given his age." Fourth, the court found that "the fundamental function of PTI" was "squarely implicated" because of "defendant's caring for his brother for 40 plus years" with "never any issues," indicating this was "a completely isolated incident." The court found that, absent factor (10), "the weighing in this situation" was "so wide of the mark that fundamental fairness and justice required the defendant be ordered to be admitted into PTI."

We share the trial court's concerns, which are supported by review of the five purposes of PTI. See Pressler & Verniero, supra, Guideline 1 to R. 3:28. First, PTI would provide defendant with the "opportunit[y] to avoid ordinary prosecution by receiving early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior by the defendant." Ibid. That is particularly true as defendant had no prior criminal record over his seventy-year life.

Second, PTI would "provide an alternative to prosecution for [the] defendant[,] who might be harmed by the imposition of criminal sanctions as presently administered." Ibid. The seventy-year-old defendant would be at unusual risk of harm from imprisonment, and even a fine could be harmful to his ability to care for his brother as he has been doing for over forty years.

Third, PTI serves "[t]o provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with 'victimless' offenses." Ibid. Neglect of an elderly or disabled person is not a victimless crime. However, the victim has stated that he wants PTI to be granted to defendant. Moreover, defendant's caretaking role and his advanced age support having the least burdensome form of prosecution possible.

Fourth, PTI would "assist in the relief of presently overburdened criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems." Ibid.

Fifth, PTI would "deter future criminal or disorderly behavior by a defendant/participant in pretrial intervention." Ibid. Given that defendant had no prior offenses during his seventy years, "the unusual facts presented here suggest that [he] would have been particularly amenable to PTI." Roseman, supra, 221 N.J. at 628. Given the isolated nature of this incident, "it is difficult to conceive of how the prosecutor decided that" only probation would be a sufficient deterrent. Id. at 628-29. Moreover, "the State's assertion that [PTI] supervisory treatment would be insufficient in this case fails to account for the rehabilitative goals of PTI." Id. at 629.

Thus, granting defendant PTI would serve four of the five purposes of PTI. Moreover, the "victimless crime" factor is offset by the victim's desire for defendant to receive PTI. Defendant is at least as attractive a candidate for PTI as the defendant in Baynes. See Baynes, supra, 148 N.J. at 439 (ordering into PTI a defendant charged with third-degree possession of heroin within 1000 feet of a school, with a prior juvenile and adult record, who cared for his mother and son).

In the unique circumstances of this case, we agree with the trial court that this is "the rare case" where a court may order a defendant into PTI despite our "severely limited review." Given that the trial court has already remanded the case, that the prosecution relied on the same improper factor on remand, and that the prosecution's decision was a "clear error in judgment," we believe "a remand will serve no useful function." State v. Bender, 80 N.J. 84, 94 (1979).

Affirmed.

1 For that reason, we refer to the defendant and his brother by initials.

2 In addition to citing the above, the criminal division manager also recommended denying defendant's PTI application based on factor (17), which requires consideration of "[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:43-12(e)(17). It appears the prosecutor did not adopt this recommendation.

3 In any event, the State does not contend that the defendant "(1) [a]ttempt[ed] to cause or purposely, knowingly or recklessly cause[d] bodily injury to another; or (2) [n]egligently cause[d] bodily injury to another with a deadly weapon; or (3) [a]ttempt[ed] by physical menace to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1(a).

4 In any event, the State does not contend this was a crime where "the victim sustain[ed] serious or significant bodily injury as defined in [N.J.S.A. 2C:11-1(b) or (d)], or the actor [was] armed with and use[d] a deadly weapon or threaten[ed] by word or gesture to use a deadly weapon as defined in [N.J.S.A. 2C:11-1(c)], or threaten[ed] to inflict serious or significant bodily injury." N.J.S.A. 2C:43-12(b)(2)(b); see N.J.S.A. 2C:44-3(g) (using a similar definition "[f]or [the] purposes of this subsection").