STATE OF NEW JERSEY v. AMIT NEHRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMIT NEHRA,

Defendant-Appellant.

_______________________________

December 28, 2016

Submitted November 3, 2016 Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 14-04-0374.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Defendant Amit Nehra entered into a negotiated plea agreement on February 20, 2015. Defendant pled guilty to third-degree offenses charging possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count two), and terroristic threats, N.J.S.A. 2C:12-3(b) (count three). The State agreed to dismiss two additional fourth-degree offenses charged in Indictment No. 14-04-0374. At sentencing, the judge imposed two concurrent five-year terms of probation, ordered restitution, and mental health counseling.

Prior to entering the plea, defendant applied for admission to the Pretrial Intervention Program (PTI). See N.J.S.A. 2C:43-12 and R. 3:28. The Criminal Case Manager recommended the application be denied and the prosecutor agreed. Defendant appeals from the denial of admission to PTI. Following a hearing, Judge Diane Pincus issued a bench opinion finding the State appropriately weighed applicable factors set forth in N.J.S.A. 2C:43-123(e), and determined defendant would not respond well to short-term minimal supervision making PTI inappropriate, as insufficient to achieve desired rehabilitative goals. She also concluded defendant failed to demonstrate the prosecutor's rejection from PTI displayed a patent and gross abuse of discretion.

On appeal, defendant presents this single argument

THE MATTER SHOULD BE REMANDED BECAUSE THE JUDGE ERRED IN DECIDING THE DEFENDANT'S PTI APPEAL BASED SOLELY ON THE POLICE REPORTS, IGNORING THE DEFENDANT'S PROFFERED FACTS.

We disagree and affirm.

The facts resulting in the charged offenses are principally found in the police reports regarding a December 15, 2013 incident. New Brunswick Police Department Patrol Officer Michael Chang was dispatched to defendant's home. Defendant, whom Officer Chang described as somewhat incoherent, explained he chased away a trespasser while armed with a maul, an ax-like tool used for splitting wood. Police located the alleged trespasser, who we identify as the victim. The victim stated he performed a K-turn in front of defendant's home using defendant's driveway. Defendant exited the residence yelling, cursing, and uttering racially charged language. Defendant retrieved the maul, smashed the victim's windshield, and stated: "Get out of the car and I'll kill you." The victim drove away and called 9-1-1. Defendant was arrested.

In denying defendant's PTI application, the prosecutor weighted significantly these factors, identified in N.J.S.A. 2C:43-12(e): the nature of the offense, N.J.S.A. 2C:43-12(e)(1); the facts of the case, N.J.S.A. 2C:43-12(e)(2); the needs and interests of the victim and society, N.J.S.A. 2C:43-12(e)(7); and the assaultive and violent nature of the offense, N.J.S.A. 2C:43-12(e)(10). The prosecutor also determined the value of supervisory treatment was not outweighed by the public's need for prosecution, N.J.S.A. 2C:43-12(e)(14), and the harm to society by abandoning prosecution outweighed benefits from directing defendant to limited supervisory treatment. N.J.S.A. 2C:43-12(e)(17). Finally, the prosecutor concluded defendant was not eligible because he was not a "first-time offender," see N.J.S.A. 2C:43-12(a)(5), given defendant had three prior arrests and convictions in municipal court for assault.

"PTI is a 'diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior.'" State v. Roseman, 221 N.J. 611, 621 (2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). In Roseman, the Court discussed the parameters of PTI decisions

The assessment of a defendant's suitability for PTI must be conducted under the Guidelines for PTI provided in Rule 3:28, along with consideration of factors listed in N.J.S.A. 2C:43-12(e). These factors include "the details of the case, defendant's motives, age, past criminal record, standing in the community, and employment performance[.]" [State v.] Watkins, 193 N.J. [507,] 520 [(2008)]; see N.J.S.A. 2C:43-12(e). Additionally, a PTI determination requires that the prosecutor make an individualized assessment of the defendant considering his or her "'amenability to correction' and potential 'responsiveness to rehabilitation.'" Watkins, supra, 193 N.J. at 520 (quoting N.J.S.A. 2C:43-12(b)).

While all defendants may apply for admission into PTI, N.J.S.A. 2C:43-12(b), the PTI Guidelines provide several statutory presumptions against PTI when defendants have committed certain offenses, see Watkins, supra, 193 N.J. at 513. . . .

Regardless of the statutory presumptions, "[e]ligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur." Pressler & Verniero, [Current N.J. Court Rules,] Guideline 2 on R. 3:28 at 1167 [(2015)]. When a statutory presumption against PTI applies, as here, a criminal defendant can show that PTI is nonetheless warranted through "facts or materials demonstrating the defendant's amenability to the rehabilitation process." Ibid. To overcome the statutory presumption against PTI the defendant must "show[ ] compelling reasons justifying . . . admission, and establish[ ] that a decision against enrollment would be arbitrary and unreasonable." Ibid. Presumptions against PTI reflect an assumption that certain defendants "have committed crimes that are, by their very nature, serious or heinous and with respect to which the benefits of diversion are presumptively unavailable." Watkins, supra, 193 N.J. at 523. Accordingly, this Court has stated that overcoming these presumptions requires showing "something extraordinary or unusual" about the defendant's background. Nwobu, supra, 139 N.J. 252-53.

[Roseman, supra, 221 N.J. at 621-23.]

The analysis must be fact-sensitive and "requires consideration of 'idiosyncratic' circumstances demonstrating that denial of PTI has resulted in a 'serious injustice.'" Id. at 624 (quoting Nwobu, supra, 139 N.J. at 252).

In this matter, defendant argues the judge erred in not conducting a hearing, during which she should have resolved disputes based on additional facts he maintained impacted review of the offenses and his eligibility for PTI. On this latter point, defendant, for the first time during his PTI denial appeal, maintained he was shoveling snow when the victim attempted to use his driveway. Defendant objected and, although directed not to do so, the victim made the K-turn and attempted to strike defendant with his vehicle. Defendant suggests the victim was the aggressor and he retrieved and used the maul in self-defense. He also explained his mental health problems impeded his ability to express these facts to police. Following our review, we are not persuaded defendant has demonstrated by clear and convincing evidence the State's denial of PTI admission reflected a "patent and gross abuse of . . . discretion."

Guided by the statute and rule, prosecutors are granted broad discretion to determine if a defendant should be diverted into PTI. State v. K.S., 220 N.J. 190, 199-200 (2015). "This discretion arises out of 'the fundamental responsibility of prosecutors for deciding whom to prosecute.'" Id. at 20 (quoting State v. Dalglish, 86 N.J. 503, 509 (1981)). "Thus, it has clearly been acknowledged that this decision lies, in the first instance, with the prosecutor, and once he has determined that he will not consent to the diversion of a particular defendant, his decision is to be afforded great deference." State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (citing State v. Leonardis, 73 N.J. 360, 381 (1977)). See also Roseman, supra, 221 N.J. at 624 ("[T]he decision to grant or deny PTI is a quintessentially prosecutorial function." (citation omitted)).

Here, the prosecutor considered and evaluated relevant factual information, following N.J.S.A. 2C:43-12(e). The prosecutor's individualized assessment considered facts bearing on defendant's "'amenability to correction' and his potential 'responsiveness to rehabilitation.'" Watkins, supra, 193 N.J. at 520 (quoting N.J.S.A. 2C:43-12(b)).

Even if the State accepted defendant's assertion that the victim almost hit him with his car when making the K-turn, this version of events would not defeat the facts the prosecutor relied upon to deny PTI. First, defendant does not dispute he retreated to his home and rather than stay there, retrieved a maul and smashed the victim's windshield. Second, contrary to defendant's contention, the offense was not victimless and his conduct involved violence. Defendant refutes his prior municipal court convictions in 2009, 2008, and 2001, on charges of domestic violence and simple assault, each of which resulted in injury to a family member. Thus, defendant's past interactions with the criminal justice system did not ameliorate his behavior, which strongly suggests defendant was undeterred from criminal conduct and would not benefit from the diversionary PTI program. Third, the defendant's assaultive conduct was directed outside his family to a stranger. Fourth, his attitude was found "not amenable to change or counseling." This culmination of evidence properly supports the State's denying PTI admission.

We also find the State and the trial judge properly considered, but rejected, defendant's mental health issues as contributing to his conduct. See K.S., supra, 220 N.J. at 202 ("Because mental health issues impact that [PTI] assessment, the prosecutor is required to consider a defendant's mental illness."). The Criminal Case Manager recorded defendant's prior mental health treatment, noting he had not fully disclosed this history, which was retrieved from other documents. Her review was incorporated into the prosecutor's assessment. Further, Judge Pincus considered defendant's underlying mental health problems, noting he was evaluated as presenting with "aggressive behavior increased irritability, assaultive behavior[,] and homicidal ideation toward his brother," issues which were "not currently being addressed." She specifically found these problems did not alter the facts relied on by the State that defendant threatened to kill the victim while brandishing a maul.

As found by Judge Pincus, the stated reasons for denial of PTI admission were based on unrefuted evidence. Moreover, defendant does not argue the State's decision relied on inappropriate or irrelevant facts; nor does he recite facts overlooked by the prosecutor, which demonstrated he was amendable to rehabilitation through PTI. We discern no "extraordinary and unusual" circumstances evincing the denial of defendant's PTI application constituted a clear error in judgment or a patent or gross abuse of discretion.

Affirmed.