STATE OF NEW JERSEY v. DARREN FORDHAM

NOT FOR PUBLICATION WITHOUT THE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.

DARREN FORDHAM,

Defendant-Appellant.

________________________________

May 10, 2016

Submitted May 2, 2016 Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 13-11-0677.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell,Special DeputyAttorney General/ActingAssistant Prosecutor,of counsel and on the brief).

PER CURIAM

After pleading guilty, defendant appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). Defendant argues the Law Division judge erred by upholding the prosecutor's rejection of his application for pre-trial intervention (PTI). We affirm.

On September 30, 2013, police in Somerset County responded to a report of "males selling or using drugs," apprehended defendant as he fled on foot, and discovered marijuana and cocaine in his possession. After they processed defendant, police discovered Middlesex County had an outstanding warrant for defendant's arrest for failing to appear on charges of conspiracy to commit murder, attempted murder, and weapons offenses (the Middlesex County charges). Middlesex County authorities then took defendant into custody.

After a Somerset County grand jury indicted and charged defendant with third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1), defendant applied for entry into the PTI program. On January 15, 2014, the PTI director rejected defendant's application. On March 3, 2014, the prosecutor concurred with the director's decision.

Defendant appealed the prosecutor's decision to the Law Division, and on April 30, 2014, the judge rendered a written opinion upholding the decision. On May 8, 2014, the judge entered an order memorializing the decision.

On August 26, 2014, defendant pled guilty in accordance with a negotiated plea agreement. On November 5, 2014, the judge sentenced defendant to a three-year probationary term along with appropriate fines and penalties. In May 2015, a jury acquitted defendant of the Middlesex County charges.

On appeal, defendant argues

THE REJECTION OF [DEFENDANT'S] APPLICATION FOR [PTI] CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION, WHICH REQUIRES REVERSAL OR, AT MINIMUM, A REMAND FOR RECONSIDERATION.

Defendant first argues the prosecutor inappropriately considered both the Middlesex County charges and defendant's juvenile record when rejecting his PTI application. We address each of these in turn.

The PTI program is governed by N.J.S.A. 2C:43-12 and the Supreme Court's guidelines provided in Rule 3:28. Although the criminal division manager first reviews a PTI application, R. 3:28, the prosecutor ultimately exercises broad discretion when deciding whether to admit an applicant into PTI. State v. Nwobu, 139 N.J. 236, 246 (1995); N.J.S.A. 2C:43-12(e) (identifying seventeen factors for consideration when evaluating a PTI application). As a result, we accord "enhanced" deference to the prosecutor's decision. State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 434, 443 (1997)). This "severely limited" review is intended to remedy "only the most egregious examples of injustice and unfairness." Ibid. (citations omitted).

A denied applicant may appeal the prosecutor's decision by moving before the Superior Court. N.J.S.A. 2C:43-12(f). To overturn the prosecutor's decision, an applicant 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) (citations omitted). A patent and gross abuse of discretion exists

if defendant can show that [the prosecutor's decision] (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. 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].

[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]

Defendant fails to make such a showing.

As to the Middlesex County charges, defendant relies on State v. Brooks, 175 N.J. 229 (2002), overruled in part by State v. K.S., 220 N.J. 190 (2015),1 where our Supreme Court warned that although a prosecutor may consider an applicant's prior dismissed charges, the prosecutor may not infer guilt from those charges; rather, the prosecutor may only consider whether the arrest or dismissed charges should have deterred the applicant from committing subsequent offenses. Defendant's reliance on Brooks is misplaced. There, the Court was concerned only with dismissed charges; here, the Middlesex County charges were pending, not dismissed. Because a pending charge may potentially lead to conviction which a dismissed charge cannot the pending, serious Middlesex County charges warrant greater consideration than the dismissed charges the Court discussed in Brooks.

Moreover, defendant's juvenile record alone was sufficient to support the prosecutor's decision, and the prosecutor did not err by considering it. A prosecutor may consider a broad category of offenses when evaluating an applicant's fitness for PTI. Id. at 226-32. An applicant may be ill-suited for PTI based on conduct that does not rise to the level of criminal, including juvenile offenses. Id. at 227. But juvenile adjudications will not support a decision to deny an otherwise meritorious applicant where the adjudications are "so minor or distant in time that they provide no reasonable basis" for the decision. Id. at 229-30.

Here, defendant's juvenile record reveals two adjudications for simple assault, in 2008 and 2009, and at least two probation violations. Defendant continued to exhibit anti-social behavior despite being repeatedly afforded probation. Defendant committed the instant crime when he was twenty-one years old, approximately four years after his last juvenile adjudication. Defendant's history of violent conduct and probation violations, coupled with its temporal proximity to the instant offense, support the prosecutor's decision. This history of violent juvenile adjudications was not so minor or temporally distant to be incapable of supporting the prosecutor's decision.

Defendant next argues the prosecutor's decision subverted the goals of PTI. We disagree.

There are five delineated 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; see also Pressler & Verniero, Current N.J. Court Rules, Guideline 1 on R. 3:28 (2016); N.J.S.A. 2C:43-12(a).]

Succinctly, the aim of PTI "is to provide prosecutors an alternate method to dispose of charges levied against qualified applicants consistent with the interest of the applicant and the overall interests of society and the criminal justice system." Brooks, supra, 175 N.J. at 223 (citing State v. DeMarco, 107 N.J. 562, 567 (1987)).

Here, defendant's pattern of continued undeterred anti-social behavior contravenes the purposes of PTI. He repeatedly violated his probationary terms and probation efforts did not deter him from committing the instant offense. Defendant's juvenile record is "clearly" relevant when considering whether PTI "can reasonably be expected to deter future criminal behavior by an applicant[.]" Id. at 228 (citation omitted). Defendant's history demonstrates PTI would not be reasonably expected to deter defendant from future criminal conduct.

Finally, defendant alternatively urges this court to remand for reconsideration of his PTI application because a jury later acquitted him of the Middlesex County charges.

State v. Halm, 319 N.J. Super. 569 (App. Div.), certif. denied, 162 N.J. 131 (1999), on which defendant relies, is readily distinguishable from the facts before us. In Halm, the defendant faced charges under two indictments: one charging a single third-degree drug-related offense; the other charging first-, second-, and third-degree violent offenses. Id. at 572-73. Because of the first- and second-degree charges, the prosecutor refused to consent to the defendant's admission into PTI. Id. at 573. The defendant did not appeal the decision. Ibid. The defendant was later convicted of the sole third-degree drug-related offense in the first indictment, but the first- and second-degree violent offenses were ultimately either dismissed or a jury acquitted the defendant. Ibid. Before sentencing, the defendant moved for reconsideration of his application, which the judge denied. Id. at 574. On appeal, we remanded for reconsideration of the defendant's application. Id. at 580. We explained the motion was not time-barred, R. 3:28(h), and the prosecutor never considered the application regarding the indictment for the third-degree drug-related offense on the merits, basing the decision solely on the nature of the pending first- and second-degree offenses. Id. at 578-79.

Here, the merits of defendant's application were considered and rejected by the director, the prosecutor, and the Law Division. Moreover, the decision to reject defendant's application was supported by more than the Middlesex County charges alone, including defendant's history of juvenile adjudications and probation violations.

Affirmed.

1 In K.S., supra, 220 N.J. at 198-99, 202, the Court overruled Brooks in part, holding a prosecutor cannot consider prior dismissed charges for any purpose when examining a PTI application. The Court gave no indication this rule should be accorded pipeline retroactivity. See State v. Natale, 184 N.J. 458, 494 (2005) (explaining pipeline retroactivity applies the holding from an opinion of the Court decided while the instant case is on direct appeal). The Court's opinion in K.S. is inapplicable to this case. First, Brooks and K.S. address prior dismissed charges, unlike the pending Middlesex County charges here. Additionally, K.S. did not overrule the prior standard allowing a prosecutor to consider juvenile adjudications, only juvenile arrests without an adjudication or admission of guilt. Id. at 202. Thus, Brooks provides the applicable standard for considering defendant's juvenile record.