STATE OF NEW JERSEY v. SIR FREDERICK LOWE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4572-07T44572-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SIR FREDERICK LOWE,

Defendant-Respondent.

_________________________________________

 

Submitted December 3, 2008 - Decided

Before Judges Stern and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3474.

Paula T. Dow, Essex County Prosecutor, attorney for appellant (Jennifer Fetterman, Assistant Prosecutor, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Cecelia Urban, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

This is an appeal by the State, pursuant to Rule 3:28(f), from an order admitting defendant Sir Frederick Lowe into the Essex County Pretrial Intervention (PTI) Program over the objection of the Essex County Prosecutor's Office. On appeal, the State contends that the trial court improperly "engaged in de novo review of the defendant's application" and discounted the prosecutor's stated reasons for denying entry into the program. Based on our review of the record and the applicable law, we conclude the prosecutor's decision to reject defendant's application was not a patent and gross abuse of discretion, and we reverse the order admitting defendant into PTI. The following procedural and factual history is relevant to our consideration of the issues advanced on appeal.

On January 29, 2007, police arrested defendant, then a juvenile, in Woodbridge, where he resided, for unlawful taking of means of conveyance, specifically, entering or riding in a motor vehicle, knowing that the motor vehicle had been taken without the consent of its owner. N.J.S.A. 2C:20-10. On April 5, 2007, the trial court adjudicated defendant delinquent on that charge and sentenced him to a one year deferred disposition, with the condition that he attend school with no unexcused absences, tardiness or suspensions and that he listen to his mother.

On April 29, 2007, at approximately 2:45 p.m., twenty-four days after the trial court granted defendant deferred disposition, Police Detectives R.M. Hudson and L. Flanagan were dispatched to South Munn Avenue in East Orange in response to a suspicious persons report concerning three males in a dark blue/black Lexus. Upon arrival, the officers immediately observed the reported vehicle and ran a license plate check, which revealed that the Lexus had been reported stolen. The officers, who were driving an undercover vehicle, parked their car and approached the Lexus on foot.

As they approached, defendant, the driver of the stolen vehicle, backed the car out of his parking spot and began to drive forward. The officers then drew their service weapons and ordered defendant to stop the vehicle. At this point, defendant began to drive toward Detective Flanagan. The detective was standing directly in front of a building and was forced to scale two parked cars in order to avoid the oncoming vehicle. The officers again ordered defendant to stop and remove the key from the ignition. Defendant complied and the officers removed all three suspects and placed defendant under arrest. A search of the car revealed marijuana and $374 in cash. The officers arrested one other suspect, and released the other, who was a juvenile, into the care of his mother.

On October 11, 2007, an Essex County Grand Jury returned Indictment No. 2007-10-3474, charging defendant with fourth- degree aggravated assault, contrary to N.J.S.A. 2C:12-1b (count one); and third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count two). On June 5, 2007, defendant submitted his application for the Essex County PTI Program and on December 20, 2007, Criminal Case Management (CCM) recommended defendant for enrollment.

In a four-page memorandum rejecting defendant's PTI application, the Essex County Prosecutor's Office outlined the reasons for denying defendant's application into the program:

It is appropriate for the State to consider the nature of the offense when evaluating an application for PTI. N.J.S.A. 2C:43-12e(1); Guideline 3(i) of R. 3:28. In the present matter, it is alleged that the defendant attempted to strike East Orange Police Detective Flanagan with a stolen vehicle. The fact that the victim was a police detective makes the offense even more serious and shows that the defendant has no respect for public servants. . . . To abandon criminal prosecution of a defendant who attempts to cause injury to a public servant who is conducting himself appropriately would have the opposite effect of deterring this kind of criminal conduct. [. . .]

Additionally, admission of an applicant into Pre-trial Intervention is measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense. N.J.S.A. 2C:43-12(5)b; State v. Leonardis, 71 N.J. 85 (1976). As mentioned previously, the defendant was arrested for this crime just twenty-four days after being granted the benefit of a deferred disposition in a similar case involving a stolen vehicle. [...] It is evident that his prior experiences with the juvenile justice system, which is based upon a rehabilitative model of punishment, have not deterred him from committing the present offense. [...]

While noting defendant had presented mitigating factors, such as his age and his lack of adult convictions, in support of his application, the prosecutor found they were "overwhelmingly" outweighed by the applicable aggravating factors, particularly N.J.S.A. 2C:43-12e(1), the nature of the offense; N.J.S.A. 2C:43-12e(2), the facts of the case; N.J.S.A. 2C:43-12e(7), the needs and interests of the victim and society; N.J.S.A. 2C:43-12e(10), the assaultive or violent nature of the crime; N.J.S.A. 2C:43-12e(14), the public need for prosecution; and N.J.S.A. 2C:43-12e(17), the harm done to society by abandoning criminal prosecution outweighs the benefits to society from channeling an offender into a supervisory treatment program.

Defendant appealed the prosecutor's decision pursuant to Rule 3:28(h). Following oral argument, the trial court admitted defendant to the PTI, "subject to him entering a plea." The court's decision included the following: "[t]he only factor that the State has articulated today for rejecting him in that PTI Program is 24 days before, a deferred disposition for which he didn't receive any type of services, which I think is appalling. Had he received some, maybe we wouldn't be here." The State appeals the trial court's order and presents the following arguments for our consideration:

POINT I:

The defendant is an inappropriate candidate for PTI and the trial judge improperly substituted his judgment for that of the prosecutor.

A. The prosecutor properly determined that the defendant was not an appropriate candidate for diversion and the defendant did not establish that the State's decision amounted to a patent and gross abuse of discretion.

B. The trial judge erroneously conducted a de novo review of the defendant's PTI application and substituted his judgment for that of the prosecutor.

PTI has been described as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). The scope of judicial review of a decision to reject a PTI application is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). A defendant seeking to overcome rejection from PTI must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff'd, 193 N.J. 507 (2008); see also State v. Wallace, 146 N.J. 576, 582-83 (1996).

A patent and gross abuse of discretion affords the prosecutor significant freedom in determining whether to admit a defendant into PTI. The standard is "more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Wallace, supra, 146 N.J. at 582-83). Our Supreme Court has held that a "patent and gross abuse of discretion" is present when the defendant can show the prosecutor'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." State v. Bender, 80 N.J. 84, 93 (1979). In addition to proving one of these deficiencies by clear and convincing evidence, the defendant must also show "that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Ibid.

Several different principles guide prosecutors in determining whether a defendant qualifies for PTI. State v. Hoffman, supra, 399 N.J. Super. at 215. For example, N.J.S.A. 2C:43-12e lists seventeen factors that prosecutors "shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program." N.J.S.A. 2C: 43-12e. These factors include the "nature of the offense," N.J.S.A. 2C:43-12e(1), the needs and interests of the victim and society, N.J.S.A. 2C:43-12e(7); and "[w]hether or not the crime is of an assaultive or violent nature," N.J.S.A. 2C:43-12e(10). In addition to N.J.S.A. 2C:43-12e, Rule 3:28 provides eight "Guidelines," which prosecutors shall consider in determining whether PTI is appropriate. For example, Guideline 3(i) states "the nature of the offense is a factor to be considered in reviewing the application and individuals who engage in crimes deliberately committed with violence or threat of violence against another person should generally be rejected." State v. Hoffman, supra, 399 N.J. Super. at 214.

While the Guidelines do offer "somewhat greater" prosecutorial discretion than the statute, it is still the prosecutor's responsibility "to weigh the various factors and to reach a determination." Ibid. (quoting State v. Wallace, supra, 146 N.J. at 586). A prosecutor must use his or her independent judgment to fully and fairly evaluate each of the relevant factors and to determine what weight each factor should be given. Ibid.; see Wallace, supra, 146 N.J. at 589-90 (holding that "[a] prosecutor has the prerogative to view seriously matters of domestic violence.").

In this case, the trial court found "[t]he only factor that the State has articulated . . . for rejecting him [defendant] in that PTI program is 24 days before, a deferred disposition for which he didn't receive any type of services. . . ." This is not supported by the record, nor does it afford the prosecutor the benefit of the presumption that he or she "considered all relevant factors before rendering a [PTI] decision." State v. Dalglish, 86 N.J. 503, 509 (1981). Here, the prosecutor's review of those factors is apparent from the February 8, 2008, rejection memorandum, and the prosecutor's comments during oral argument. The memorandum clearly outlines the prosecutor's consideration of six of the seventeen factors enumerated in N.J.S.A. 2C:43-12e. At oral argument, the prosecutor did emphasize that defendant's arrest was less than a month since the trial court granted him deferred disposition. However, she also noted the risk defendant posed to Detective Flanagan when he drove the vehicle toward him. The trial court, therefore, erred in finding that the prosecutor only considered one factor when rejecting defendant's PTI application.

Defendant contends the trial court correctly admitted him into PTI because the prosecutor considered inappropriate aggravating factors and mischaracterized "factors (2) (the facts of the case) and (14) (crime of such a nature that public need for prosecution outweighs the value of supervisory treatment) as aggravating factors . . . ." (Emphasis in original). Specifically, defendant claims the prosecutor could not argue defendant was not amendable to rehabilitation because the State did not provide him with services after his disposition on January 29, 2007, and also asserts that the prosecutor embellished defendant's alleged attempt to run down Officer Flanagan with the stolen Lexus.

The statutory language of N.J.S.A. 2C:43-12e gives prosecutors considerable discretion in determining what constitutes appropriate factors to consider. See State v. Brooks, 175 N.J. 215, 226-29 (2002) (holding that a prosecutor may consider both a defendant's juvenile record and the existence of arrests that resulted in dismissed charges when evaluating a PTI application). In determining that defendant is not amendable to rehabilitation, the prosecutor may certainly consider that defendant was arrested less than a month after the juvenile court deferred disposition on his earlier indictment, especially because the juvenile court's primary function is to rehabilitate. A.A. ex rel. B.A. v. Attorney General of New Jersey, 189 N.J. 128, 136 (2007). Also, the prosecutor "characterized" plaintiff's attempt to run down Detective Flanagan based on the officer's police report. The prosecutor is entitled to rely on police reports and not embark on his or her own factfinding mission. State v. Baynes, 148 N.J. 434, 445 (1997).

Because the prosecutor clearly did not fail to consider relevant factors, nor was the prosecutor's decision based on irrelevant or inappropriate factors, defendant has failed to satisfy his burden of demonstrating an abuse of discretion under the first two prongs of the Bender standard. We must, therefore, determine whether defendant satisfied the third prong by demonstrating the prosecutor committed "a clear error of judgment." State v. Bender, supra, 80 N.J. at 93.

The Supreme Court has defined "a clear error of judgment" as a decision "based on appropriate factors and rationally explained, but . . . contrary to the predominant views of others responsible for the administration of criminal justice." State v. Baynes, supra, 148 N.J. at 444 (internal quotations omitted). In this case, defendant drove a vehicle towards a police officer after the officer ordered defendant to stop the car. The officer was standing in front of a wall and his avenues for escape were limited. Given these circumstances, the threat of violence to the officer was "undoubtedly present and, in such cases, a defendant's application should generally be rejected." State v. Hoffman, supra, 399 N.J. Super. at 216 (quoting R. 3:28, Guideline 3(i)(3)). Moreover, a prosecutor "has the prerogative to view a potentially dangerous situation, such as this, as a serious matter. . . ." Ibid. Therefore, it is clear that the prosecutor denied plaintiff's application for PTI after evaluating the appropriate factors. State v. Baynes, supra, 148 N.J. at 444. The prosecutor did not have a "clear error in judgment" when rejecting defendant and the trial court abused its discretion by overruling that decision.

Moreover, the trial court erred in conditioning defendant's admission into PTI upon his entering a guilty plea. Guideline 4 of Rule 3:28 expressly forbids requiring a guilty plea or an admission of guilt. State v. Spann, 160 N.J. Super. 167, 173 (Law Div. 1978). "Steps to bar participation solely on such grounds would be an unwarranted discrimination." Pressler, Current N.J. Court Rules, Comment on R. 3:38 at 1031 (2008).

A trial court may not substitute its own judgment for that of the prosecutor, even when the court finds the prosecutor's decision to be harsh. State v. Hoffman, supra, 399 N.J. Super. at 216. In this case, the prosecutor's reasons for rejecting defendant's application are "consistent with the legislative standards applicable to PTI enrollment, with the PTI guidelines promulgated by the Court, and with judicial precedent regarding PTI admissions." Ibid. Thus, the prosecutor's rejection of defendant's application was not a patent and gross abuse of discretion and the trial court erred in overruling it.

The order admitting defendant into PTI is reversed, and the matter is remanded for further proceedings consistent with this opinion.

The trial court considered that defendant was "accepted into college" as a mitigating factor. However, defendant merely claimed that he was "intending on applying" to a university in Florida. Nothing in the record suggests that defendant actually applied or had been accepted to any school at the time of his PTI hearing, nor is there any evidence to show that he has applied anywhere since that date.

We also note that defendant currently resides in Florida. Guideline 3(b) states "those defendants are ineligible who reside such distances from New Jersey as to bar effective counseling or supervisory procedures."

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A-4572-07T4

December 23, 2008