STATE OF NEW JERSEY v. RASHAAD CORNISH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3649-05T23649-05T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RASHAAD CORNISH,

Defendant-Respondent.

_____________________________________________________________

 

Submitted November 28, 2006 - Decided December 21, 2006

Before Judges Coburn and Axelrad.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, No. 05-06-00559.

Ronald J. Casella, Cumberland County Prosecutor,

attorney for appellant (Christina E. Foglio,

Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney

for respondent (Jorge C. Godoy, Deputy

Public Defender, on the brief; Barbara Ann Johnson- Stokes, Assistant Deputy Public Defender, of counsel

and on the brief).

PER CURIAM

The Cumberland County Prosecutor rejected defendant's application for admission to the pretrial intervention program ("PTI"), N.J.S.A. 2C:43-12; R. 3:28, despite the PTI director's approval of the application. Defendant moved before the trial court for admission over the prosecutor's rejection. His motion was granted, an order was entered on February 3, 2006, and the State appeals. We reverse because the trial court erred in finding that the prosecutor's decision was an abuse of his discretion.

On June 22, 2005, defendant, Rashaad Cornish, then age twenty-one, was indicted for third degree witness tampering, N.J.S.A. 2C:28-5(a)(2). The indictment arose from an incident that occurred on March 3, 2005. Defendant's girlfriend was fired on that date, and defendant responded later in the day by coming to her place of employment accompanied by a friend and striking her employer in the face with sufficient force to cause him to bleed. The employer filed an assault charge, and defendant responded to that by offering the employer $100 to drop the charges against him. The employer refused, and defendant left after asking the employer to "think about it." The offer of the bribe was the basis for the indictment. Defendant was found guilty of simple assault.

Before the indictment, defendant had an eight year history of juvenile offenses and adult disorderly persons offenses. In 1999, he was adjudicated delinquent for fighting, N.J.S.A. 2C:33-2(a), resisting arrest, N.J.S.A. 2C:29-2(a), possession of a weapon, N.J.S.A. 2C:39-5(d), and terroristic threats, N.J.S.A. 2C:12-3, and he was placed on probation. Later in 1999, he was adjudicated delinquent for harassment, N.J.S.A. 2C:33-4(a), and his probation was extended for six months. In 2000, he was found guilty of violating a municipal residential curfew; in 2002 he was found guilty of disorderly conduct in violation of a municipal ordinance; in 2004 he was found guilty of receiving stolen property, a disorderly persons offense, N.J.S.A. 2C:20-7(a); and in early 2005 he was found guilty of tumultuous behavior under a municipal ordinance. On August 30, 2005, some five months after the assault on his girlfriend's employer, defendant was charged with obstructing the administration of law, N.J.S.A. 2C:29-1(a), and in December 2005, he was found guilty of that charge in municipal court.

In response to defendant's application for pretrial intervention in the bribery case, the prosecutor wrote as follows:

The defendant in this matter has been indicted on one charge of witness tampering, a third degree charge. He has made application to enter into the Pre-Trial Intervention Program. In my opinion the defendant should be denied entry into P.T.I.

The charges have their genesis in another matter. This defendant was arrested on March 3, 2005 for simple assault in Millville (he was eventually found guilty of these charges on May 5, 2005.) On April 28, 2005, it was alleged that he offered to pay the complaining witness in the Millville assault case $100.00 to drop the charges. He was thereafter charged with witness tampering.

The defendant at 21 years of age, is a young man. He has however been getting in trouble since he was 13 years old. He has almost constantly been in trouble. As a juvenile, he had a 1997 charge of fighting dismissed; in 1998 a charge of hindering apprehension and harassment were dismissed; in 1999 he was adjudicated a delinquent for fighting, possession of a weapon, resisting arrest, and terroristic threats, later in 1999 he had a charge of fighting dismissed, but was adjudicated a delinquent for harassment. In addition, he has not been a stranger to our municipal courts. In 2000 he was found guilty of violating a curfew in Millville, in 2002 he was guilty of disorderly conduct; in 2004 he was found guilty of receiving stolen property; in 2005 he was guilty of placing a person in fear of their life and safety; also in 2005 he was found guilty of assault (previously mentioned in the history of this charge). Since his arrest in this matter, he has been arrested for obstructing administration of law.

2C:43-12(2) indicates that P.T.I. is a proper alternative to prosecution for those defendants for whom it can serve as a sufficient sanction to deter criminal conduct. This young man's history indicates that he has not been sufficiently deterred by prior encounters with the criminal justice system. A clear pattern has developed which leads to the conclusion that the defendant wishes to pursue a criminal career. In this case, it is alleged that he offered a witness $100.00 to drop a complaint against him. It appears that he has adopted a criminal mind set.

It is my opinion that the services that can be rendered to this defendant in a P.T.I. program will not be beneficial. Based upon his past behavior, I believe the only way to deter him from future criminal justice activity is to prosecute him for his crime. This defendant should be denied entry into P.T.I.

The trial judge described the case as presenting a "close call." He also conceded that the prosecutor had considered defendant's amenability to rehabilitation, but asserts that the prosecutor mischaracterized prior conduct of defendant as criminal. However, the prosecutor's letter belies that assertion. The judge seems to have relied on his sense that "the scope and level of [defendant's] record is not that egregious." The judge then referred to defendant's participation in an anger management program, while conceding that the participation probably resulted from his own prompting during prior proceedings in this case.

A trial judge's scope of review of a prosecutor's decision denying PTI is quite narrow, State v. Leonardis, 73 N.J. 360, 381 (1977), and the defendant has the burden of proving an abuse of discretion. Ibid. In other words, defendant must prove that the prosecutor failed to consider relevant factors, based the decision on inappropriate factors, or made a clear error in judgment. State v. Warriner, 322 N.J. Super. 401, 409 (App. Div. 1999). The judge did not find that the prosecutor failed to consider relevant factors or that he considered irrelevant factors. Rather, he largely disagreed with the prosecutor's assessment of the extent and seriousness of defendant's prior criminal record. That disagreement does not demonstrate that the prosecutor abused his discretion, particularly when, as here, the offense charged in the indictment, witness tampering, strikes at the heart of the judicial system. Judicial review of prosecutors' decisions on PTI admission is not intended to deal with the close case, which, as noted, was the judge's own description of this case, but with decisions that are clearly and demonstrably unjust. This was not such a decision.

Reversed and remanded for further proceedings.

 

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A-3649-05T2

December 21, 2006