STATE OF NEW JERSEY v. MONICA DARKO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2834-05T42834-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MONICA DARKO,

Defendant-Appellant.

__________________________________

 

Submitted October 22, 2007 - Decided November 2, 2007

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0724.

Yvonne Smith Segars, Public Defender, attorney for appellant (Maria Thompson, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Monica Darko appeals an October 21, 2005 order of the Law Division denying her admission, consistent with the prosecutor's objection, into the Pretrial Intervention Program ("PTI"), N.J.S.A. 2C:43-12a. That order followed defendant's plea of guilty to two counts of a fifteen-count indictment, as amended, subject to her right to apply for admission into PTI. After being denied entry into PTI, defendant was sentenced to two years of probation. We affirm.

The underlying facts are substantially undisputed for purposes of this appeal. They involve a violent altercation in East Orange on December 13, 2004 between defendant and Robert Jackson, whom she previously dated and who is the father of her minor son. At the time, Jackson was living with defendant's mother and brother, while defendant was living elsewhere with their son.

As the State more particularly alleged, on the afternoon in question, Jackson borrowed the car of defendant's mother to pick up defendant's sister at work. While Jackson was waiting for the sister, defendant arrived on the scene with the parties' two-year-old son. When the sister was ready to leave, Jackson told her that he would walk home because he did not want to get into the car with defendant.

Shortly after separating from the group, Jackson realized that he had left a pouch in the sister's car. He called the sister on a cell phone, and she agreed to meet him to return his pouch. In the interim, defendant found the pouch, opened it up, and found condoms inside. That discovery caused defendant, when Jackson returned to recover his pouch, to launch into what her counsel acknowledged to the trial court as an "uncontrollable rage."

Defendant repeatedly screamed at Jackson, "I'm going to f*** you up." As he walked down the street to get away from her, defendant took the wheel of her sister's car. Defendant tried to run him over, with their son still in the backseat of the car. She drove the car onto the sidewalk, missing her intended target. Jackson then ran to the back of the car to avoid being struck. Defendant put the car into reverse and attempted a second time, unsuccessfully, to run him over. Defendant's sister then jumped in front of the car, causing defendant to stop driving.

At that point, defendant ran out of the car, opened the trunk and pulled out a crowbar. She tried to strike Jackson with the crowbar until her sister's husband, who also had been present in the car, interceded. The brother-in-law wrestled the crowbar from defendant. Defendant then ran towards Jackson, jumped on him, and knocked him to the ground. The brother-in-law pulled defendant off of Jackson, who headed home.

About five minutes after Jackson returned to defendant's mother's house, defendant smashed the windshield of one of his cars and slashed two tires on another car. She then pounded on the door and ran inside to go after him again. During a further struggle, defendant cut her mother, who became caught in the middle, with a beer bottle. As Jackson tried to take the broken bottle away from defendant, she slashed his hands with the cut glass. Eventually, Jackson wrenched the bottle from defendant, and she was restrained from any further attacks by her brother-in-law. Police were summoned and defendant was arrested. Jackson went to the hospital, where he was treated for various injuries.

A grand jury subsequently issued a fifteen-count indictment against defendant, charging her with three counts of second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); three counts of fourth-degree unlawful possession of a weapon (the crowbar, the motor vehicle, and the broken beer bottle), in violation of N.J.S.A. 2C:39-5d; three counts of third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; two counts of third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3a; two counts of third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4; fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2a; and third-degree resisting arrest, in violation of N.J.S.A. 2C:29-2.

Subsequently, defendant pled guilty to one of the counts of third-degree terroristic threats and to an amended count of aggravated assault, downgraded from the second-degree to the third-degree. In exchange, the State agreed to dismiss the remaining charges and recommend probation, subject to defendant having the opportunity to apply for PTI.

After reviewing defendant's ensuing PTI application, the prosecutor's office wrote a letter to the court objecting to defendant's admission into the program. Although the prosecutor's letter recognized that defendant was twenty years old, a college student, and the mother of small child, the prosecutor nonetheless determined that defendant was an inappropriate candidate for diversionary treatment under PTI.

Among other things, the prosecutor noted that defendant's enraged conduct was "violent and excessive," particularly in attempting to "hit the victim with her car while her two year old child was in the back seat." The prosecutor underscored the need to deter such conduct, which "could have [led] to greater injurious consequences for her child and the victim." The prosecutor also noted that, although this case represents defendant's first indictment as an adult, she had multiple prior juvenile adjudications, including three deferred dispositions for assault. In sum, the prosecutor determined that defendant had failed to establish that the values of supervisory treatment outweighed the public need for prosecution. See N.J.S.A. 2C:43-12e.

Defendant argued to the Law Division judge that the prosecutor's opposition to her admission into PTI was arbitrary and capricious and should be set aside. The judge rejected that contention, and so do we.

As statutorily established in N.J.S.A. 2C:43-12e and as implemented in our criminal courts under R. 3:28, PTI is a discretionary program. Admission into PTI requires a positive recommendation from the program director and also the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). The prosecutor's assessment is to be guided by seventeen factors enumerated in the PTI statute. N.J.S.A. 2C:43-12e(1) through (17).

Given "the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, supra, 139 N.J. at 246). That deference to the prosecutor has been described as "'enhanced' or 'extra'" in nature. Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)).

Consequently, the scope of judicial review of a prosecutor's objection to a defendant's admission into PTI is severely limited. Ibid.; see also Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). As the Court most recently noted in Negran, judicial review of PTI denials "serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); see also State v. DeMarco, 107 N.J. 562, 566 (1987).

Thus, "[a] defendant attempting to overcome a prosecutorial veto [of PTI admission] must 'clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion' before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent." Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246). That standard, which also governs appellate review, requires the following showing:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (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 Pretrial Intervention.

[Negran, supra, 178 N.J. at 83 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]

Having carefully reviewed the record in this case, we are satisfied that the prosecutor's opposition to defendant's entry into PTI was well-founded and clearly not "a patent and gross" abuse of discretion. Ibid.

Defendant argues that the prosecutor overlooked or misapplied several factors in the PTI analysis. In particular, defendant notes that the principal victim, Jackson, eventually stated in a letter that he had been working to try to resolve his problems with defendant and that she "has always been a positive force in my life and it's sad to see her go through this whole court process. I think she has been through enough." Although this letter might reasonably be construed as a request for leniency and a desire to forego prosecution, thereby relevant to the fourth statutory factor, N.J.S.A. 2C:43-12e(4), its significance is greatly overshadowed by the severity of defendant's violent and dangerous behavior, which not only imperiled Jackson but also her two-year-old child. Moreover, the judge considered Jackson's letter before ratifying the prosecutor's denial of PTI.

Likewise, we are unpersuaded by defendant's claims that statutory factors eight, N.J.S.A. 2C:43-12e(8) (whether the conduct is part of a pattern of anti-social behavior); fourteen, N.J.S.A. 2C:43-12e(14) (whether the value of supervisory treatment outweighs the public need for prosecution); and seventeen, N.J.S.A. 2C:43-12e(17) (whether the harm to society by abandoning prosecution outweighs the societal benefits of channeling an offender into a supervisory program) overcome the negative factors expressly identified in the prosecutor's objection letter. Although we appreciate defendant's youth and the potential that she might benefit from diversionary treatment, her conduct was simply too dangerous and irresponsible to warrant a reversal of the prosecutor's PTI assessment, given our very limited scope of review. Her ultimate sentence of probation should provide her with a fair opportunity to correct her assaultive proclivities in the future, without sacrificing the public's interest in deterrence and punishment.

Affirmed.

 

To protect the privacy of the minor child, we refer to the father by the same fictitious name given to him in the prosecutor's brief. See N.J.S.A. 2A:82-46a; see also State v. Harris, 141 N.J. 525, 534 (1995).

(continued)

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A-2834-05T4

November 2, 2007