STATE OF NEW JERSEY v. THOMAS NADZAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2006-06T52006-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS NADZAN,

Defendant-Appellant.

______________________________________

 

Submitted August 29, 2007 - Decided September 13, 2007

Before Judges A. A. Rodr guez and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, 4219-10-05.

Clifford E. Lazzaro & Associates, attorneys for appellant (Heather A. Fierro, on the brief).

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Gary S. Menchen, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomas Nadzan entered a negotiated plea of guilty to fourth degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b). In exchange, the State agreed to: recommend a non-custodial sentence; dismiss a related second degree offense; and refrain from objecting to defendant's Pretrial Intervention Program (PTI) application. Following the plea, defendant applied to PTI. The prosecutor consented to a late application. Defendant was denied entry to PTI by the program coordinator. The program coordinator's letter indicates both procedural and substantive reasons for rejection. The procedural issue is that the application was out of time. As for the substantive reasons, the letter states in pertinent part:

The discovery material discloses that on January 30, 2005 the Bureau of Immigrations and Customs Enforcement in San Antonio, Texas received information via the 1-800-BE-ALERT line that a Sean Murphy believed he was sent a video containing child pornography while using an on line [sic] video conferencing program. On February 1, 2005 Mr. Murphy brought his computer to ICE agents for an examination of a one-minute, twelve-second [video] depicting a nude prepubescent child with his or her back to the camera and sitting on top of an adult nude male. The adult's hands and penis were visible and the male appeared to be penetrating the child with his erect penis. The video log disclosed that the originating message number showed the software was purchases [sic] on March 31, 2001 by [a] credit card belonging to defendant Thomas F. Nazdan and registered to Thomas Nazdan of . . . Collingswood, NJ 08107. The defendant's current address was located [in] . . . Haddon Twp., NJ and on March 25, 2005 SAC/Newark Child Exploitation Group (US Customs) executed a search warrant at [the Haddon Twp. address] and took the defendant's computer. The police report also indicates that during an interview, the defendant advised agents that he utilized his computer to trade child pornography and video and that he sometimes sent videos to people without viewing them. The forensic examination revealed three save[d] images of child pornography on Mr. Nazdan's computer. The possession and distribution of such materials by the defendant is assaultive in its contribution to the exploration of children.

N.J.S.A. 2C:43-12(e)1, 2, 7 and 14 requires consideration of the nature of the offense, the facts of the case, needs and interests of the victim and society and whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution.

I have considered that [sic] materials submitted by the defendant including his age (41), employment and lack of prior criminal convictions. I have also considered your letter to Asst. Prosecutor Gary Menchen dated April 6, 2006 in which you indicate images of child pornography were downloaded inadvertently and your opinion that the defendant poses no threat to public safety that PTI would be a deterrent to future criminal conduct and that a conviction may cause him to lose his employment. Despite these considerations and in view of the late application lack of joint application and serious nature of the present offenses, it is my opinion that the defendant is not a suitable candidate for PTI. The application is denied.

Defendant moved to challenge his rejection. Judge Thomas A. Brown denied the motion. On that same date, defendant was sentenced by Judge Louise Donaldson Direnzo, who imposed a two-year probationary term and payment of mandatory fees and penalties.

Defendant contends on appeal:

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION CHALLENGING REJECTION OF PTI, AS THE PTI DIRECTOR AND PROSECUTOR BASED THE DECISION ON INAPPROPRIATE FACTORS, FAILED TO MENTION RELEVANT FACTORS, AND SO INAPPROPRIATELY WEIGHED THE RELEVANT FACTORS THAT THE DECISION AMOUNTED TO A "PATENT AND GROSS ABUSE OF DISCRETION.["]

A. The Trial Court and Prosecutor's Office Failed to Consider Assistant Prosecutor Shilton's Consent For Defendant To File Pretrial Intervention Application "Out of Time."

B. The Trial Court and Prosecutor's Office Failed To Properly Give Weight to the Exculpatory Evidence Regarding the Second Degree Charge.

C. The Prosecutor's Office Nor the PTI Director Conducted an Interview Of the Defendant.

D. The Circumstances and Nature of the Charges and the Characteristics of the Defendant Weigh In Favor of the Defendant's Entry Into PTI.

We are not persuaded.

We begin our analysis by reiterating the principle that judicial review of prosecutorial decisions on the diversion of a defendant into PTI is available "to check only the most egregious examples of injustice and unfairness." State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Leonardis, (Leonardis II), 73 N.J. 360, 381-84 (1977). The decision to admit an applicant to PTI lies, in the first instance, with the prosecutor. State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). Once the prosecutor determines that there will not be a consent to the diversion of a particular defendant, the decision is to be afforded great deference. Ibid.; Leonardis II, supra, 73 N.J. at 381; State v. Dalglish, 86 N.J. 503, 509 (1981). The level of deference has been categorized as "enhanced deference" or "extra deference." See State v. DeMarco, supra, 107 N.J. at 566; State v. Dalglish, supra, 86 N.J. at 513-14 n.1. Beyond this, the scope of any review in this area is to be "severely limited." State v. Bender, 80 N.J. 84, 89 (1979). The Supreme Court has announced that there is an expectation that a prosecutor's decision in this regard "rarely will be overturned." Leonardis II, supra, 73 N.J. at 380 n.10; State v. Litton, 155 N.J. Super. 207, 212 (App. Div. 1977). The same applies to decisions by the program itself. To overcome a veto of the application, an applicant must clearly and convincingly show that the rejection was based on a "patent and gross abuse of discretion." Leonardis II, supra, 73 N.J. at 382; State v. Maldonado, 314 N.J. Super. 539, 543 (App. Div. 1998).

Here, based on our careful review of the record, we conclude that defendant has failed to meet that standard. Moreover, we conclude that the PTI program's decision is not an abuse of discretion considering the circumstances.

 
Affirmed.

(continued)

(continued)

2

A-2006-06T5

RECORD IMPOUNDED

September 13, 2007