STATE OF NEW JERSEY v. ANTWON T. STEVENSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6979-03T46979-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTWON T. STEVENSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 12, 2005 - Decided January 18, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-04-0290.

Yvonne Smith Segars, Public Defender, attorney for appellant (Madge R. Buckle, Designated Attorney, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jane E. Hendry, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Antwon T. Stevenson was convicted by a jury after a five-day jury trial on Passaic County Indictment No. 4-1-03 of third-degree theft by unlawful taking as proscribed by N.J.S.A. 2C:20-3, resulting in a sentence of two years probation with drug and alcohol dependency rules to apply, the requirement of a DNA sample, and appropriate monetary penalties. He appeals from the final judgment of conviction and sentence entered on May 21, 2004, on the basis that the denial of his admission into the pre-trial intervention (PTI) program by the criminal division manager/PTI director (CDM) was a clear error in judgment and that the PTI judge's decision to uphold the CDM's decision constituted reversible error. We reverse the decision denying defendant's admission into PTI and remand for further proceedings in accordance with this opinion.

Defendant, a twenty-five year old married father of three children, had been employed three and one-half years as a sales supervisor for the Old Navy store located in Wayne. On December 12, 2002 he was charged along with three co-defendants with the theft of $1,822 worth of merchandise, comprised of seventy-nine separate items from the Wayne Old Navy Store. All of the merchandise was immediately recovered.

Defendant filed a PTI application on March 31, 2003, which the CDM denied by denial notice dated May 7, 2003. Defendant moved before the designated PTI judge pursuant to Rule 3:28(h) in an attempt to reverse his rejection from PTI by the CDM and to compel his admission into the PTI program. Defendant's motion was denied by the PTI judge on June 27, 2003, leading to defendant's trial and conviction.

On December 12, 2002 at approximately 9:00 p.m., field loss prevention manager Raymond Acevedo and his colleague Michelle Barone began surveillance of the Old Navy store in the Wayne Town Center Mall. Acevedo parked his vehicle outside the mall in the well-lighted mall parking lot, about forty yards from the only open entrance/exit. He had a clear view "from my car directly in front of the store. There was absolutely nothing blocking my vision."

At various times, beginning at 10:50 p.m., Acevedo stated that he "observed four different males (later identified as defendant and co-defendants) exiting the store, [each] carrying large or medium-sized shopping bags [that they placed both] behind bushes outside the store about two feet from the store door and inside a light-colored vehicle parked about twenty to thirty feet from the door. On one occasion the shortest man ran out to the [light-colored] vehicle with a bag in his hand, hid the bag underneath the vehicle, ran back inside, came back out and disabled the car alarm, put the bag in the vehicle and ran back inside." After observing the men for about an hour, Acevedo contacted his supervisor and the Wayne Police Department. As the four men were leaving the store, they were detained in the parking lot by Acevedo and his partner until the police arrived. Acevedo gave a statement to the police, who arrested defendant and his accomplices and retrieved the bags from defendant's vehicle and the hiding place in the shrubs. No store receipts were found and price tags were still attached to the merchandise.

Officer Paul Kindler, the first officer to arrive on the scene and the officer who arrested defendant and his three accomplices, confirmed that there were large plastic bags containing Old Navy merchandise located behind the bushes right outside the main door and inside defendant's white Lincoln Continental.

Defendant testified on his own behalf at trial, stating that a shipment of clothing in boxes arrived about 9:30 p.m. or 10:00 p.m., which he and other employees unloaded for about an hour. When the truck arrived to be unloaded, defendant got his car keys from his jacket as he "had to move [his] car so the [truck] could back up towards the door." Defendant maintained that he had no packages with him at that time and saw no items in his car. He testified that his car keys were on his person while he was outside and the truck was being unloaded. He denied taking any items from the shipment or the stock in the store, bagging them and placing them behind bushes or in his car, but he conceded that after the police searched his car, it contained four large Old Navy paper bags on the floor. He claimed he did not know how these bags came to be found in his car, but posited that it was possible that someone took his car keys from his jacket pocket while it was hanging in the employee break room on the opposite end of the store from the entrance/exit door. He maintained that he never gave anyone permission to take his car keys or open his car.

Defendant presents the following arguments for our consideration:

I. THE DIRECTOR'S DENIAL OF DEFENDANT'S PTI APPLICATION AMOUNTS TO A CLEAR ERROR IN JUDGMENT BECAUSE THE DENIAL IS BASED ON A MISUNDERSTANDING BETWEEN THE DEFENDANT AND THE INTERVIEWER REGARDING A QUESTION THAT WAS ASKED ON THE PTI APPLICATION.

II. THE TRIAL COURT ERRED IN ITS RULING THAT THE DEFENDANT MUST ADMIT THAT HE IS GUILTY OF THE SUBJECT CRIME IN ORDER TO BE ADMITTED INTO PTI.

I.

Defendant first contends that improper considerations prompted the rejection of his PTI application by the CDM, and that his PTI application should be re-evaluated according to proper standards. We agree. As contained in the denial notice, the CDM rejected defendant's application for admission into PTI for the following reasons: "(1) Attitude not amenable to change/counseling process; (2) No causal connection between the offense charged and the need for rehabilitative services; and (3) False information given at time of PTI application." The specific reasons defendant was rejected were summarized in the "Comments" section:

1. At his PTI interview, defendant agreed with the information on his PTI application that his only arrest was for the instant offense. However, according to the records, it was revealed that he had a prior arrest on October 24, 2002 for the criminal charge of Possession of a False Motor Vehicle Insurance Card. Defendant failed to make payments on his $407 fine and a bench warrant was issued. When the defendant was confronted with this information, he stated that he did not consider the offense serious enough to mention it on his application or at his interview. The defendant's lack of honesty, and the fact that this office cannot be assured that the defendant will pay his fines or make any restitution for the instant offense, or that he will not become involved in future criminal activities, places this office in a position whereby a suitable rehabilitative program cannot be developed.

2. At his interview, defendant failed to recognize any role or responsibility in the instant offense, or display any remorse toward the victim, by stating that he had "absolutely" nothing to do with the offense. Additionally, he shifted the blame to the other three co-defendants. The defendant's statement seemed to be very contrary to the police report indicating that all four suspects were observed removing the merchandise from the store. These statements by defendant places this office in a position whereby a suitable rehabilitative program cannot be developed, which is a necessary part of the rehabilitative process.

3. Defendant denied adamantly that he was involved in the instant offense, and adamantly stated that he refuses to make any restitution, if it is so determined or ordered. Therefore, for this reason and the ones mentioned above, it is the opinion of this program that this case should be processed through traditional court procedures. (emphasis added).

"Under current practice, admission into PTI is based on a recommendation by the [CDM], with the consent of the prosecutor." State v. Nwobu, 139 N.J. 236, 246 (1995) (citing Rule 3:28(b)). "[CDMs] are judicial appointees selected by the assignment judge." Ibid. The current PTI program is governed by Rule 3:28 and supplemented by N.J.S.A. 2C:43-12. "The Guidelines contained in Rule 3:28 embody the essential elements of the enumerated statutory factors." State v. Brooks, 175 N.J. 215, 224 (2002).

Guideline One of Rule 3:28 outlines the five purposes of PTI as follows:

(a) To provide defendants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior by the defendant. . . .

(b) To provide an alternative to prosecution. . . when. . . expected to serve as sufficient sanction to deter criminal conduct.

(c) To provide. . . the least burdensome form of prosecution possible for defendants charged with "victimless" offenses.

(d) To assist in the relief of presently overburdened criminal calendars. . . .

(e) To deter future criminal or disorderly behavior by a defendant/participant in pretrial intervention.

In the Official Comment to Guideline One, it is noted that "Guideline 1(b) recognizes that diversion [into PTI] in appropriate circumstances can serve as sufficient sanction to deter future criminal conduct." Pressler, Current N.J. Court Rules, comment on R. 3:28 (2006). The Comment continues: "Guideline 1(d) provides for removing from ordinary prosecution those who can be deterred from criminal behavior by short term rehabilitative work or supervision." Ibid. (emphasis added).

Guideline Two states: "[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. Any defendant accused of crime shall be eligible for admission into a PTI program." Ibid.

The criteria used to evaluate each particular defendant for admission into PTI is found in Guideline Three. PTI is considered appropriate for adult first-time offenders who reside in New Jersey and whose crime was not part of organized criminal activity or a continuing criminal business or enterprise. There are exceptions to this policy, however, as even repeat offenders may be permitted into PTI.

Seventeen additional statutory factors, enumerated in N.J.S.A. 2C:43-12(e), require consideration by CDMs when evaluating PTI applications of defendants. Among the pertinent factors are: "(7) The needs and interests of the victim and society; and (9) the applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others." N.J.S.A. 2C:43-12(e)(7) and (9).

In State v. Wood, 211 N.J. Super. 110 (Law Div. 1986), the trial court ruled that to require PTI applicants to provide sworn affidavits pertaining to criminal history, "has the appearance of entrapment[.]" Id. at 115. Therefore, the court held that "[t]he application affidavits should not be used as part of the PTI application process. They are misleading and entrapping. They may offer a convenient way for the Director to obtain information about criminal records, but it is obvious that he obtains such records in any event from other sources." Id. at 113.

The affidavits were viewed by the court as confusing in that they used "the disjunctive 'arrested or charged[,]'" and "[t]he terminology raises questions not easily answered by the untutored." Id. at 114. "Can you be arrested without being charged? Can you be charged without being arrested? What is a charge?" Id. at 114-15. "What is a 'minor' traffic offense?" Id. at 115.

In Wood, "Wood equated 'arrest' with bail or custody. His receipt of a summons did not indicate to him that he had been arrested. He must have been convicted since he was obliged to pay restitution, but he did not understand the connection." Ibid.

Despite having eliminated sworn affidavits as part of the PTI application process, applicants are still required to disclose information pertaining to their criminal history. The concerns of the court in 1986 still linger today even in the absence of sworn affidavits. Applicants are still required to provide statements disclosing past arrests as part of their PTI application. The definition of the term "arrests" is as ambiguous today to a PTI applicant as it was in 1986, and proved to be in this case. This ambiguity is of critical importance when a defendant's PTI application gets rejected largely on the basis that he was untruthful regarding his criminal past, which is what happened here.

The CDM premised his decision in large part on a misunderstanding between defendant and the PTI interviewer, concerning whether defendant had any prior "arrests," specifically referring to his municipal court appearance for Possession of a False Automobile Insurance Card, contrary to N.J.S.A. 2C:21-2.3, in October 2002. Defendant contends that he was aware that he possessed a false insurance card, and he admits that he went to court and was fined. However, he contends that he did not mention this incident on his PTI application because he believed he was not "arrested," but merely received a summons to appear in court. The CDM, however, used this misunderstanding to support his conclusion that defendant was untrustworthy and not deserving of admission into PTI.

The record at the PTI rejection hearing indicates that the PTI judge recognized that the "arrests" disclosure misunderstanding was "merely a technicality and an understandable play on words." In addition, the PTI judge chose not to make the "arrests" issue a factor in his final decision whether to admit defendant into PTI. We are satisfied, therefore, that such an acknowledged misunderstanding can not substantiate a finding by the CDM that defendant lacks the requisite honest character for admission into PTI.

In addition, the multiple factors contained in Rule 3:28 and N.J.S.A. 2C:43-12(e) for admission into the PTI program do not expressly exclude defendant from admission into the program. Defendant is a first-time offender charged with the third-degree crime of theft. All of the alleged stolen goods were recovered, therefore restitution to the victim is not applicable.

Admission into PTI depends not only on the CDM, but also on the recommendation of the prosecutor. A high level of deference is given to the prosecutor's decision in such a case and has been termed "'enhanced deference.'" State v. Burbano, 304 N.J. Super. 215, 219 (Law Div. 1996). However, "[e]nhanced deference has been traditionally applied only to the decision of the prosecutor and has been held to be inappropriate to a decision by the [CDM]." Id. at 219-20.

"[D]eterminations made by [CDMs, however] are [not] to be ignored. Rather, the burden of proof on a defendant to overcome determinations of rejections made by [CDMs] should, as discussed in Lopes, have a lower standard of proof than the standard afforded to prosecutors." Id. at 222. The standard of proof as articulated by the Law Division in Burbano, is as follows:

A defendant in order to challenge the refusal of the director, must demonstrate by a preponderance of the evidence, that the program director's decision amounted to an abuse of discretion; whereas, a defendant's challenge to a refusal by the prosecutor must be demonstrated by clear and convincing evidence. Defendant, in either situation, meets the burden if it demonstrated that the 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.

[Ibid. (emphasis added).]

The Law Division, in State v. Lopes, 289 N.J. Super. 460, 471 (Law Div. 1995), referred to "the decision whether to admit a defendant to PTI[]" as a "quasi-judicial decision . . . made by a judicially-appointed program director and a county prosecutor. . . ." (citation omitted). "Lopes found that the PTI decision rests with both the [CDM] and the Prosecutor, although differing standards apply to the decision of each. Thus, both entities must concur regarding admission of defendant." Burbano, supra, 304 N.J. Super. at 221. Further, Rule 3:28(b) states, "Where a defendant charged with a penal or criminal offense has been accepted by the program, the designated judge may, on the recommendation of the criminal division manager and with the consent of the prosecutor and the defendant, postpone all further proceedings against said defendant on such charges. . . ."

Based on our review of the record, we are convinced that the decision of the CDM, using a preponderance of the evidence standard: was based upon a consideration of irrelevant or inappropriate factors that amounted to a clear error in judgment. See State v. Bender, 80 N.J. 84, 93 (1979).

II.

After being denied admission into PTI by the CDM, defendant appealed the decision of the CDM by filing a motion before the PTI judge in accordance with Rule 3:28(h). Defendant's motion was heard by the PTI judge and denied principally on the basis that defendant refused to admit guilt or accept responsibility for the alleged crime. Because the PTI judge affirmed the denial of defendant's admission into PTI by the CDM, defendant had to "wait until a judgment of conviction had been entered before appealing. . ." to this court. Nwobu, supra, 139 N.J. at 248. According to Rule 3:28, Guideline Eight, "[t]he challenge [to a PTI denial] is to be based upon alleged arbitrary or capricious action, and the defendant has the burden of showing that the [CDM] or prosecutor abused discretion in processing the application." We review the decision of the PTI judge to determine whether the judge'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." Burbano, supra, 304 N.J. Super. at 222.

Defendant contends that the CDM abused his discretion in denying his application, and that the PTI judge, in upholding the CDM's denial, improperly interpreted the applicable law. Defendant, therefore, asserts that the PTI judge's denial should be reversed and remanded for reconsideration.

Applying the applicable standard of review, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]" we agree with defendant that the PTI judge improperly applied the law in this case. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

The PTI judge stated:

First of all, if your client is innocent he should not be -- PTI is really a rehabilitative process. And if a person is innocent he shouldn't be into PTI. He shouldn't be convicted. He should be acquitted. Should he-- you know, he should be relieved of that obligation. He shouldn't have to go to PTI. And if your - Mr. Stevenson is innocent - he just might be - let the case develop. And then at that time maybe a prosecutor will dismiss - it sounds highly unlikely - or maybe they'll put him into the PTI.

But at this point what's before me is I have a victim that's not consenting. I have a defendant who's not totally honest. That is not a requirement with PTI. However, under the circumstances here where he indicated he's absolutely innocent of the charges, it was someone else's responsibility, apparently - maybe -again, I don't know Mr. Stevenson. He may be - I'm not so much concerned about the motor vehicle offense. But if he is - if he is innocent here and he does need to prove honest life, then he shouldn't be saddled with any type of criminal conviction.

To this comment by the judge, defense counsel stated:

Judge, there's something I never really understood about PTI and I don't think that that is the - the intention of PTI, although it seems to be the practice. Namely that if a person is guilty of an offense and admits to it, then he's okay for rehabilitation. But if a person who is not guilty and maintains his innocent - innocence, he is not relieved of the burden of the regular criminal prosecution and he's not diverted. Your Honor seems to be saying that if he's innocent, he shouldn't go through a -

The judge responded, "Exactly right. He shouldn't be in PTI."

In stark contrast to the judge's articulated decision that acceptance into PTI is predicated upon a defendant's guilt, is Guideline Four to Rule 3:28. This Guideline states, "Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilt. Enrollment of defendants who maintain their innocence should be permitted unless the defendant's attitude would render pretrial intervention ineffective." The Comments to Guideline Four state, "Neither admission of guilt nor acknowledgment of responsibility is required. Steps to bar participation solely on such grounds would be an unwarranted discrimination." Pressler, Current N.J. Court Rules, comment on R. 3:28 (2006) (emphasis added). Our Supreme Court, in State v. Maddocks, 80 N.J. 98, 106 (1979), stated that, "a [CDM] cannot deny consent to enrollment to a particular individual simply because that individual has elected not to tender self-incriminatory information." However, the court continued:

This is not to say, however, that in any particular case a [CDM] may not take into consideration the fact that a specific defendant has refused to admit his guilt. In certain circumstances, a voluntary proffering of self-incriminatory information may indicate defendant's degree of repentance for the crime he has committed, and hence bear upon his "amenability to correction" and potential "responsiveness to rehabilitation." See Gilhaus Beverage Co. v. Lerner, 78 N.J. 499, 527 (1979) (Pashman, J., concurring and dissenting). Indeed, Guideline [Four] explicitly notes that failure to admit guilt may be considered if "defendant's attitude would render pretrial intervention ineffective." Thus, although a [CDM or judge] may not condition PTI entrance upon an admission of guilt, a failure to so admit, if relevant to defendant's "amenability to correction," may be weighed along with all other factors dealing with the nature of the crime and the character of the accused.

[Id. at 106-07.]

In this case, the PTI judge rejected defendant's appeal solely for his failure to admit any responsibility for the alleged theft. Such a denial is inappropriate and ground for reversal pursuant to Rule 3:28, Guideline Four. The PTI judge did not properly evaluate the CDM's basis for rejecting defendant's PTI application. Instead he simply rejected defendant's appeal due to his denial of guilt and used defendant's denial improperly as an outright bar to defendant's admission.

In accordance with N.J.S.A. 2C:43-12(f), which provides that an applicant must be provided with a statement of reasons for denial, the CDM in this case outlined three principal reasons for rejecting defendant's PTI application. The Supreme Court in State v. Negran, 178 N.J. 73, 82 (2003), stated "[t]hat writing requirement is intended to facilitate judicial review, assist in evaluating the success of the PTI program, afford to defendants an opportunity to respond, and dispel suspicions of arbitrariness. The requirement also enables a defendant to challenge erroneous or unfounded justifications for denial of admission." (citations omitted).

The PTI judge did not use the CDM's denial statement as a basis for his ruling against defendant. Further, the PTI judge never ruled that the CDM's denial of defendant's application was a proper exercise of discretion. See State v. Kern, 325 N.J. Super. 435, 439 (App. Div. 1999). By basing the court's decision solely on defendant's denial of guilt, defendant was denied his right to properly challenge the CDM's determinations.

The PTI judge noted that the victim objected to defendant's PTI enrollment. The victim's position was, "[i]f the defendant admits his involvement and comments that he is sorry. . . [I have] no objection to him being enrolled in PTI. However if defendant denied his involvement he should not be enrolled." The judge stated, "and this is my concern, and now when Mr. Stevenson. . . simply denied. . .his involvement, which may be true, by the way." We are satisfied that denial of admission into PTI based on a condition precedent required by the victim that the defendant "admit his culpability and be sorry," is contrary to the express language of Guideline Four to Rule 3:28, and should therefore not have been determined by the judge to be a prerequisite to defendant's admission into PTI.

We are convinced that the judge's reason for barring defendant's admission into PTI was solely on the ground that defendant would not admit his guilt and maintained his innocence and as such was a mistaken exercise of the judge's discretion. The judge determined that he was not even going to address the possession of a false insurance card issue as a reason to preclude defendant from PTI ("I'm not so much concerned about the motor vehicle offense."), but in his denial decision relied solely on the fact that defendant maintained his innocence to the crime alleged against him. The judge stated, "[T]he predicate for PTI is a person who is guilty, a first offender, a light offense, a person who is capable of short-term rehabilitation. Anyone who is innocent doesn't belong with PTI, doesn't belong in the criminal justice system." (emphasis added).

We are satisfied that the PTI judge failed to properly apply the three Burbano factors in his review of the CDM's decision. Burbano counsels that the proper role of the PTI judge is to determine, using a preponderance of the evidence standard, whether the CDM'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." Burbano, supra, 304 N.J. Super. at 224. Rather than basing his decision on the appropriate factors outlined in the Guidelines and N.J.S.A. 2C:43-12(e), the PTI judge in his review of defendant's appeal, based his decision solely on an erroneous premise. Defendant's denial of guilt should have had no dispositive effect on either the CDM's or the PTI judge's decision in this case. Because the PTI judge denied defendant's admission into PTI based only on defendant's denial of guilt, we remand to the trial court for further consideration of defendant's appeal of his PTI denial based upon the Guidelines to Rule 3:28 and the statutory factors contained in N.J.S.A. 2C:43-12(e).

Reversed as to decision denying PTI and remanded.

 

Rule 3:28(a) provides that each Assignment Judge shall designate a judge to act on all matters pertaining to PTI programs in the vicinage in accordance with N.J.S.A. 2C:43-12 and -13.

The assurance that defendant will pay restitution is not at issue here because all of the merchandise was recovered immediately and returned to the store, therefore no restitution is warranted.

Although the record indicates that counsel and the judge referred to the charge of possession of a false motor vehicle insurance card as a motor vehicle offense, N.J.S.A. 2C:21-2.3 designates the offense a "disorderly persons offense."

(continued)

(continued)

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A-6979-03T4

January 18, 2006