STATE OF NEW JERSEY v. RAUL GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0636-08T40636-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAUL GONZALEZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 5, 2009 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-12-1940.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Nicole M. Ghezzar, Assistant Prosecutor, on the brief).

PER CURIAM

After he was denied admission into the pre-trial intervention program (PTI), defendant pled guilty to the single charge against him, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and was sentenced to two years probation. Defendant had been recommended for PTI admission by the program director, but rejected by the prosecutor. Defendant appeals his PTI rejection. More specifically, he argues:

BECAUSE THE PROSECUTOR'S OFFICE DENIED ADMISSION INTO THE PTI PROGRAM FOR NO REASON OTHER THAN ENSURING THAT THE DEFENDANT HAD A CRIMINAL RECORD, THE DECISION TO DENY PTI WAS A PATENT AND GROSS ABUSE OF DISCRETION AND THE ORDER DENYING ADMISSION TO THE PROGRAM SHOULD BE REVERSED.

We reject defendant's argument and affirm.

On September 25, 2007, defendant went to his ex-wife's home to return his wedding ring. Apparently distraught over the break-up of the marriage, defendant lifted his shirt and displayed to his ex-wife a handgun tucked in his waistband, saying, "it will all be over soon." Defendant then left. His ex-wife understood this as a reference to a potential suicide. She called the police. They went to his home the next day and recovered the gun, which defendant turned over uneventfully. In the same location as the unloaded gun, the police also recovered ammunition. Defendant had no prior criminal record. He previously had a permit to carry a handgun when he worked as a security guard, but no longer had such a permit at the time of this incident. However, he continued to have a permit to own the handgun.

When the police spoke to defendant, he acknowledged what he had done. Indeed, he said he told his wife he intended to kill himself. On the day they recovered the gun, September 26, 2007, the police caused defendant to submit to a psychiatric evaluation. The psychiatrist diagnosed defendant with depression and suffering from marital problems. In his report, the psychiatrist stated that defendant "denies active suicidal ideas or thoughts."

After the program director recommended defendant for PTI admission, the prosecutor rejected the application, stating three reasons: (1) The nature of the offense, (2) The potential for violence, and (3) Society's need to prosecute crimes involving domestic violence and involving a handgun outweigh the benefits of diversion to this defendant. In his appeal to the Law Division, defendant argued that the prosecutor's decision constituted a gross and patent abuse of discretion. Defendant argued that his ex-wife interpreted his conduct on September 25, 2007 as an expression that he might hurt himself, not that he had any intention of harming her. Therefore, defendant argued there was no act of domestic violence. He pointed out that he lawfully owned the gun, and previously had a permit to carry it. Therefore, although he was unlawfully carrying the gun on this occasion, the circumstances under which he owned the gun were not unlawful. Defense counsel conceded at oral argument that "we're all familiar with situations where domestic violence does occur between estranged spouses and when weapons are produced. I'm not suggesting to the Court that that doesn't happen . . . ." Defense counsel contended, however, that this was not such a situation. As to defendant's statement to the psychiatrist that he did not entertain suicidal thoughts, defense counsel argued that the absence of "active" suicidal thoughts at that time was not necessarily inconsistent with the presence of suicidal thoughts on the previous day.

Judge Kracov correctly stated the standard of judicial review of a prosecutor's rejection of a defendant from PTI participation. He noted that it was not his decision to make, but that he was required to consider whether the prosecutor's decision, by clear and convincing evidence, constituted a gross and patent abuse of discretion. Recognizing the extremely deferential standard of review, the judge was satisfied that there was no basis for judicial intervention.

The judge noted, for example, that the situation was emotionally charged and could have easily resulted in actual violence. In that regard, the judge deferred to the prosecutor's "reasonable inference, that someone who goes there, says he's going to do something to himself, and then a day later says he's not going to commit suicide, is giving mixed signals, which can scare people and are dangerous." The judge also found persuasive the prosecutor's contention that the events were in the context of a domestic violence scenario, with a potential for both physical and mental violence caused by defendant's actions. The judge noted that "[o]ur laws are very sensitive to potential violence . . . with wives or spouses involved and threats to the spouse . . . or actions that might be threatening." The judge concluded that the prosecutor acted reasonably in inferring that defendant's "action was fraught with potential violence and designed to frighten his [ex-]wife." Accordingly, the judge denied defendant's appeal.

A prosecutor's decision to reject an applicant from PTI will only be overturned by a court upon a showing, by clear and convincing evidence, that the prosecutor's decision was based on a patent and gross abuse of discretion. State v. Nwobu, 139 N.J. 236, 246 (1995). A gross and patent abuse of discretion requires a showing that the prosecutor failed to consider all relevant factors, based his or her decision on a consideration of irrelevant factors, or committed a clear error in judgment. State v. Bender, 80 N.J. 84, 93 (1979). Further, it must be shown that the prosecutorial error will clearly subvert the goals underlying PTI. Ibid. Therefore, prosecutors are granted enhanced deference in making these determinations, which will rarely be overturned by a court. State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993).

We find no error in Judge Kracov's analysis. He applied the correct legal standard and the conclusion he reached is sound. On appeal, defendant does not contend that the prosecutor failed to consider all relevant factors or considered irrelevant factors. Instead, defendant argues that the prosecutor made a clear error of judgment. He supports this argument by contending that normal prosecution was ineffective, counterproductive, or unnecessary, because defendant is unlikely to reoffend, his life will be adversely affected by having a criminal conviction on his record, and he could receive the same rehabilitative opportunities through diversion as through probation.

For the reasons expressed by Judge Kracov, we find this argument unpersuasive. The incident defendant intentionally created was a serious one, and it was indeed fraught with the potential for violence. If he merely wanted to advise his wife that he was contemplating suicide, he could have done so without bringing with him a gun and displaying it to her. It was reasonable for the prosecutor to infer that he intended to scare her and cause her emotional distress. It was also reasonable for the prosecutor to infer that the situation could have easily erupted into a tragedy, as has unfortunately occurred from time to time in this context. Defense counsel conceded as much before the trial court. This was not a nonviolent or victimless offense. The prosecutor acted within his discretion in considering the nature and circumstances of the offense and reaching the conclusions he did.

On appeal, defendant raises another argument as well. He argues that the fact that the prosecutor negotiated a probationary sentence after the court denied defendant's appeal of his PTI rejection proves that the prosecutor merely wanted to assure that defendant would have a criminal record, which was an improper reason for rejecting him from PTI. This argument was rejected in State v. Wallace, 146 N.J. 576 (1996), and we reject it here. As a third-degree offender with no prior criminal record, defendant was entitled to a presumption against incarceration, see N.J.S.A. 2C:44-1e, and a probationary sentence was entirely appropriate.

 
Affirmed.

In its trial brief, the prosecutor stated that upon receiving the call from defendant's ex-wife, police officers immediately searched for defendant's vehicle and went to his home with negative results on the day of the incident. Then, they returned to his home the following day and he was there.

(continued)

(continued)

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A-0636-08T4

October 22, 2009