STATE OF NEW JERSEY v. YAKISHA WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5234-06T45234-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YAKISHA WALKER,

Defendant-Appellant.

________________________________

 

Submitted December 10, 2008 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1254.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Jennifer Fetterman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Yakisha Walker appeals from a December 18, 2006 order denying her appeal of the prosecutor's rejection of her application for Pretrial Intervention (PTI). Rule 3:28(g). Defendant entered a guilty plea to fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5(d), and the State agreed to drop the remaining two charges. After the court denied defendant's attempt to withdraw her guilty plea, the judge sentenced her to a two-year term of probation.

The sole issue presented for review on appeal is whether:

THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO PTI IS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION WHICH MUST BE CORRECTED BY THIS COURT.

We affirm.

I

On July 19, 2006, Newark Police Officers Sarno and O'Connor responded to a report of a domestic violence dispute in progress at 354 South 10th Street. Upon investigation, the police learned there was no domestic violence incident. Antoine Walter had called the police to remove people sitting on his front steps. Walter believed the police would respond more quickly if he sought help for domestic violence. Walter was arrested for making a false report.

As Walter was being escorted by police, defendant, Walter's sister, came down the steps from their second floor apartment, and screamed at the officers to release Walter. Defendant had her arm extended and held an eight inch boning knife in her hand. Officer Sarno believed defendant was about to stab him as she came running, cursing, and screaming at him while wielding the knife. When Officer Sarno began to draw his weapon, defendant dropped the knife. She was arrested and taken into custody.

Defendant applied for admission to the PTI program. On August 17, 2006, a PTI investigator recommended defendant's application be denied. On November 13, 2006, the Essex County's Prosecutor's Office rejected defendant's PTI application, finding insufficient compelling reasons for deferment. Specifically, the State determined the presumption against PTI admission resulted because the current and past offenses committed by defendant were crimes involving violence or the threat of violence. N.J.S.A. 2C:43-12(e)(1) and Guideline 3(i) of Rule 3:28.

The State also relied upon what it termed defendant's demonstrated "serious pattern of anti-social behavior." N.J.S.A. 2C:43-12(e) (5) and (12). As a juvenile, defendant was arrested for possession of a weapon, for which she received a deferred disposition; for possession of narcotics, for which she was placed on probation for one year; and simple assault. Other juvenile charges were dismissed. See State v. Brooks, 175 N.J. 215, 219 (2002). As an adult, defendant was arrested for disorderly conduct (fighting), for which an active bench warrant was issued. This present charge was defendant's first indictable offense. Based on defendant's criminal history, the prosecutor determined defendant was not deterred in the past. After heavily weighing the violent and unprovoked nature of the present offense and, specifically noting defendant's conduct could have resulted in serious or deadly consequences for the officer and herself, the prosecutor concluded defendant was not an appropriate candidate for rehabilitation. He rejected defendant's PTI application.

Defendant appealed the prosecutor's denial of her PTI request. During argument on the PTI appeal, held on December 18, 2006, defendant insisted the State's factual presentation of events was exaggerated. She suggested she was cooking and inadvertently rushed from her apartment with the knife still in hand to see what was happening to her brother. She explained she did not intend to stab the police officer and no one was injured. She also insisted her last arrest occurred eight years ago because she did not commit the offenses associated with the two 2002 arrests, and they were mistakenly attributed to her.

The prosecutor explained the violence associated with this offense sufficiently supported the rejection of defendant's PTI application. Additionally, even if the two challenged arrests were eliminated, the State's position remained unchanged because defendant's offense contained "very serious threats of violence or actual violence."

The court deferred to the prosecutor's discretion and noted "someone does not need to be injured" to determine whether the conduct contained threats of violence. The judge upheld the prosecutor's denial of defendant's PTI application and denied her motion.

Approximately one month after the Law Division affirmed the prosecutor's rejection of defendant's PTI application, defendant entered a negotiated guilty plea to fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5(d), and the State agreed to drop the remaining two charges and recommended a sentence not to exceed 364 days incarceration. The judge stated he was inclined to sentence defendant to probation. At the conclusion of the plea colloquy, the judge specifically found defendant's guilty plea was knowing and voluntary and had been entered with the advice of competent counsel. After determining defendant had provided a factual basis for the plea of guilty, the judge accepted defendant's guilty plea and set the matter down for sentencing on March 5, 2006.

Defendant filed a motion to withdraw her guilty plea, which was heard on March 9, 2006. The court denied the motion and after weighing the aggravating and mitigating factors, sentenced defendant to two years probation. As a condition of probation, defendant was required to obtain a GED. All applicable penalties and assessments were imposed.

II

We examine defendant's claim that the judge committed reversible error when he denied defendant's PTI appeal because the prosecutor's rejection was "an arbitrary, patent and gross abuse of discretion." State v. Leonardis, 73 N.J. 360, 382 (1977) (Leonardis II). "PTI is a procedural alternative to the traditional process of prosecution and punishment of defendants." State v. Watkins, 193 N.J. 507, 517 (2008) (citing State v. Leonardis, 71 N.J. 85, 89 (1976) (Leonardis I). PTI's primary purpose "is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system." Id. at 513. "Eligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change such that society can have confidence that they will not engage in future criminality. N.J.S.A. 2C:43-12e." Ibid.

The initial decision to accept or reject a defendant's PTI application lies with the prosecutor. Leonardis II, supra, 360, 381; R. 3:28; N.J.S.A. 2C:43-12(a). Once a prosecutor refuses to consent to the diversion of a particular defendant, the prosecutor's decision is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). As a result, the scope of a court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979).

The admission criteria for PTI are broad. However, "defendants who have committed certain crimes are viewed as problematic from a rehabilitation perspective and are subject to special treatment." Watkins, supra, 193 N.J. at 519. "If the crime was . . . (3) deliberately committed with violence or threat of violence against another person; . . . . the defendant's application should generally be rejected." R. 3:28, Guideline 3(i). The Guideline's presumption against acceptance in PTI may be overcome if a defendant establishes "compelling reasons" for admission. State v. Nwobu, 139 N.J. 236, 252 (1995).

We are satisfied and agree with Judge Fullilove's determination that defendant has not met the heavy burden of clearly and convincingly establishing the prosecutor's rejection "constitutes a patent and gross abuse of discretion." State v. Watkins, 390 N.J. Super. 302, 305-06 (App. Div. 2007) (citing State v. Negran, 178 N.J. 73, 82 (2003), aff'd, 193 N.J. 507 (2008). PTI was denied based on the violence associated with the charged offense. The defendant's confrontation with an eight inch boning knife in hand unquestionably posed a threat of violence to Officer Sarno. Also, her past offenses included two deferred dispositions for simple assault and possession of a weapon. The trial judge's conclusion that the prosecutor's exercised discretion was not "'so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention'" must be upheld. State v. Wallace, 146 N.J. 576, 582-83 (1996) (quoting State v. Ridgeway, 208 N.J. Super. 118, 130 (Law Div. 1985)).

Defendant argues she has not exhibited a serious pattern of anti-social behavior because she was not the defendant in the two 2002 arrests. This contention misses the critical question examined by the court. It was the nature of this offense, coupled with her past arrests, which caused defendant's rejection as a PTI candidate. Defendant was agitated, screaming, cursing, and brandished a knife confronting a uniformed police officer. The argument that the officer was not actually hurt is specious.

Defendant presents no evidence that the State did not review all factors set forth in N.J.S.A. 2C:43-12(e) or that the court's review was improper. She merely disagrees with the conclusions reached. We determine defendant's rejection as a candidate for PTI was consistent with the legislative standards and PTI guidelines. State v. Hoffman, 399 N.J. Super. 207, 217 (App. Div. 2008).

We are sensitive to the stress experienced in defendant's personal life, as she cares for her two children while maintaining employment and continuing her education. However, her personal situation does not alter the facts.

In sum, the record amply supports the judge's conclusion that the prosecutor's rejection of defendant's PTI application was not a patent and gross abuse of discretion. See Leonardis II, supra, 73 N.J. at 381.

Affirmed.

 

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A-5234-06T4

December 22, 2008