STATE OF NEW JERSEY v. ROLAND CARVALHO, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6123-05T26123-05T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ROLAND CARVALHO, JR.,

Defendant-Respondent.

_______________________________

 

Argued: December 12, 2006 - Decided July 24, 2007

Before Judges Kestin and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Somerset County, 06-03-00134-I.

Eric Mark, Assistant Prosecutor, argued the cause for appellant (Wayne J. Forrest, Somerset County Prosecutor, attorney; Mr. Mark, of counsel and on the letter brief).

Charles Z. Schalk argued the cause for respondent (Mauro, Savo, Camerino & Grant, attorneys; Mr. Schalk, of counsel and on the brief).

PER CURIAM

The State appeals from an order admitting defendant into the Somerset County Pretrial Intervention Program (PTI or "the program"), see R. 3:28, following a determination by the Somerset County Prosecutor that defendant did not qualify for the program and over the continuing objections of the State, arguing that "the trial court erred in admitting defendant into PTI over the State's objection without a finding of patent and gross abuse of discretion." The trial court stayed its order pending appeal.

When the question of defendant's eligibility for PTI first came before the trial court, on May 15, 2006, on defendant's application for review of the prosecutor's denial, the judge, stating his reasons in an oral opinion, remanded the matter for reconsideration. When the matter came back to the court with the rejection unmodified, the court ordered defendant admitted to the program.

Defendant stands indicted for second-degree robbery, N.J.S.A. 2C:15-1a(2), and third-degree theft, N.J.S.A. 2C:20-3a, from a bank. According to the testimony of a police detective before the grand jury, defendant handed the bank teller a bag with a note demanding the money in her top drawer. He had a glove on his left hand, and his right hand was in the pocket of his jacket. The teller reported to the police "that when she looked at the pocket of [the] jacket . . . there was some movement inside [the] jacket and she believed that [defendant] had a weapon[.]" She gave defendant "money that was in her teller drawer along with [a] bundle of money that was known as bait money[,]" approximately $1,577. With a description of the robber, his clothing, and his car, along with photographic images from a surveillance camera, the police were able to identify defendant. In an interview with the police, defendant admitted to his involvement in the incident.

Two boxes were checked in the form memorializing the prosecutor's initial denial of the PTI application: that "[t]he victim or complainant opposes the Defendant's entry into supervisory treatment, or the crime is such that the public need for prosecution outweighs the value of the supervisory treatment[;]" and that "[t]he defendant is charged with a serious offense that carries a presumption of imprisonment if the defendant is convicted and has not shown compelling reasons justifying admission and establishing that a decision against enrollment would be arbitrary and unreasonable." Each item contained one or more statutory citations.

In the initial argument to the trial court, counsel presented defendant as a fifty-seven-year-old man with no criminal record. He possessed a master's degree, had been married for twenty-one years, and was a United States Army veteran. Counsel acknowledged that defendant had a history of substance abuse for which he had been treated "since about 1986[.]" Counsel represented that defendant had "got[ten] himself into a dire financial situation." He lacked the money to pay for his son's private school tuition and "[he had] started drinking again, having lost his job being out on disability." According to counsel, defendant "had a momentary loss of moral resolve. * * * He's trying to get his life back in order. He's being treated now for depression and alcoholism." Counsel stressed that, at the time of the incident, defendant had been drinking. Counsel argued that, notwithstanding a second-degree crime had been charged, the State would not be able to prove assaultive behavior, i.e., "threaten[ing] another with or purposely put[ting] him in fear of immediate bodily injury[,]" N.J.S.A. 2C:15-1a(2), and that "this is going to wind up being a third[-]degree case."

The prosecutor in response, argued that the crime qualified in every basic way for second-degree treatment, and "the State's objection [was] appropriate and certainly not an abuse of discretion."

Reviewing the options open to the court, the judge noted the case law that establishes the responsibility of the courts to review such matters with enhanced deference toward the prosecutor's decision. See, e.g., State v. Nwobu, 139 N.J. 236, 246 (1995); State v. Leonardis, 73 N.J. 360, 381 (1977); State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div 1993). The court was required to find a gross abuse of prosecutorial discretion before it could overrule the denial of admission to the program. Ibid.

In evaluating the situation presented on the initial review, the judge expressly accepted the State's proposition that the matter involved "a serious crime[,]" and that the teller's feeling of having been threatened was reasonable and understandable. The judge continued:

While this court is satisfied that there does not appear to be an abuse of discretion by the prosecutor, nonetheless, the court is satisfied that it would be appropriate under these circumstances, because of the deluded version in the note, because of the issues raised by counsel, . . . that at the very least, this matter be remanded for review by the PTI director as well as the prosecutor, having not been reconsidered in the past.

See State v. Daglish, 86 N.J. 503, 510 (1981).

Following reconsideration on remand, the prosecutor's office wrote defense counsel, advising that defendant had been rejected from the program a second time. The letter stated five reasons, including the second reason for the initial denial, citing N.J.S.A. 2C:44-1d. The other four reasons were:

2.) The nature of the offense, pursuant to N.J.S.A. 2C:43-12e(1).

3.) The needs and interest of the victim and society, pursuant to N.J.S.A. 2C:43-12e(7).

4.) The crime the defendant is charged with is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution, pursuant to N.J.S.A. 2C:43-12[e](14).

5.) The harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling the offender into a supervisory treatment program, pursuant to N.J.S.A. 2C:43-12e(17).

The matter returned to the docket for the trial court's further consideration. After hearing the arguments of counsel, the judge reiterated the legal standards governing the court's review and determined that defendant should be afforded the

opportunity to continue [his] rehabilitative process by letting him into the [PTI] program. After all, that's the goal and purpose of it. * * * [W]hen I balance the quality of [the] facts as they have been presented by both sides, the balance in my view swings towards the defendant. And when one couples that with the factors that the Court's obligated to take into consideration on a [PTI] application, namely . . . , and when I consider the fact that this man is already . . . at the threshold of being rehabilitated . . . . I can't see the benefit to the public to have him prosecuted. The interests of the public would be better served if this individual of [fifty-seven] years successfully rehabilitates himself through the . . . Program and I am going to grant [the] application.

An order memorializing this ruling was entered a month later and, shortly thereafter, the stay pending appeal was entered.

As the trial court judge, himself, observed on his initial review of the matter, "there does not appear to be an abuse of discretion by the prosecutor" in the rejection of defendant's PTI application. The record on the remand discloses nothing about the case or defendant's circumstances that was not before the trial court or the prosecutor on their initial considerations, except that additional reasons for denying program admission had been articulated. There is nothing in the judge's evaluation on either occasion that suggests the prosecutor, in denying admission, did not consider "all relevant factors" or considered "irrelevant factors" or made a "clear error of judgment." See Nwobu, supra, 139 N.J. at 247.

At bottom, the record discloses that the trial court judge merely substituted his judgment for that of the prosecutor regarding the appropriateness of defendant's admission to the program. See id. at 252. There had been no "demonstrat[ion of] something extraordinary or unusual, something 'idiosyncratic' in his . . . background[,]" ibid., beyond the showings that the offense charged was a first offense and that defendant had accepted responsibility for the crime, which do not suffice as a basis for the decision made to override the prosecutor's considered judgment. "A reviewing court '"does not have the authority in PTI matters to substitute [its own] discretion for that of the prosecutor."'" Id. at 253 (quoting Kraft, supra, 265 N.J. Super. at 112, and State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980)). Especially where the crime charged is of the second degree or higher, special considerations amounting to "compelling reasons for admission into PTI" must be found to exist before the court's views of the disqualifying seriousness of the charge may supplant those of the prosecutor, given the latter's duties to administer the criminal justice system in his county. See id. at 252-53. See also State v. Wallace, 146 N.J. 576, 588-89 (1996).

In summary, we regard the reasons stated by the trial court for overruling the prosecutor's discretionary determination regarding defendant's amenability to PTI to have been a departure, in the circumstances, from the standards established in pertinent case law.

 
The trial court's order that defendant be admitted to PTI is reversed and the order is vacated.

(continued)

(continued)

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A-6123-05T2

July 24, 2007