STATE OF NEW JERSEY v. S.B

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4487-07T44487-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.B.,

Defendant-Appellant.

________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 07-08-1222.

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

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

PER CURIAM

Following the trial court's denial of his motion to compel admission into the Pretrial Intervention Program ("PTI"), defendant S.B. pled guilty to an accusation charging him with third-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b). Pursuant to a plea agreement, the trial court sentenced defendant to one year of non-custodial probation, and also imposed various customary fines and costs. Defendant now appeals the court's rejection of his PTI application and his ensuing conviction. We affirm.

The pertinent facts that led to defendant's prosecution are as follows. At about 5: 30 P.M. on February 22, 2007, two officers of the Port Authority of New York and New Jersey responded to a report of a firearm discovered by TSA personnel within the luggage of an airline passenger at Newark Liberty International Airport. When the Port Authority officers arrived at the luggage screening area, they were informed that an X-ray operator had spotted the lower receiver of a .22 caliber semi-automatic handgun in checked luggage belonging to defendant. The handgun was wrapped inside of a sock. Eleven rounds of ammunition, a magazine and other parts to the handgun were discovered in another one of defendant's bags.

Defendant, who had a plane ticket to Amsterdam, was instructed to report to the baggage screening area, where he was given Miranda warnings by the Port Authority officers. When questioned about the handgun found in his luggage, defendant initially denied that it was his. However, defendant eventually admitted the gun belonged to him and he was placed under arrest.

The Port Authority officers transported defendant to the airport administration building, where he was searched and his property was inventoried and secured. During their inventory of defendant's possessions, the Port Authority officers found, among other things, a topographical map of Sierra Vista, Arizona; materials from an advocacy organization targeting illegal immigration; and several pictures of political figures.

The Port Authority notified the Federal Air Marshal Service and the United States Secret Service of defendant's arrest. Agents from those federal offices soon arrived and questioned defendant. After the federal agents completed their questioning, Port Authority officers contacted an assistant prosecutor in Essex County. The assistant prosecutor recommended that defendant be charged under state law with unlawful possession of a weapon. The Port Authority then finished processing defendant, specifying the weapons charges against him on a warrant, pending a bail determination. Among other things, the warrant stated that the weapons offense was "within the jurisdiction" of the Superior Court in Essex County.

Subsequently, the Newark Police Department performed an examination of the seized firearm, determining that it was missing its takedown button, firing pin, firing pin spring, and safety. As such, the weapon was deemed "inoperable, but [could] easily be restored to operable condition."

The record reflects that defendant had legally purchased a .22 caliber handgun in his home state of Ohio in 2005. It is undisputed that he did not have a permit to possess the gun lawfully in the State of New Jersey.

As of the time of his arrest, defendant was age twenty-five, unmarried, and residing with a friend in Philadelphia. He was unemployed and enrolled in an on-line college. He identified his permanent address as his grandparents' mobile home in Ohio. Defendant indicated that he was being supported by his mother, a Mississippi resident, until he completed his studies.

After securing representation by counsel, defendant applied for admission into PTI and was interviewed by a criminal case management officer. According to defendant's intake form, he stated to the case manager that he was in good physical and mental health. He disclosed to the case manager, although he later recanted it, that he suffers from bouts of depression caused by anxiety, and had been diagnosed with depression at age ten or eleven. Defendant also indicated he had been prescribed Zoloft and Paxil for his depression, but stopped taking such medication "approximately 4 years ago." During the intake process, defendant divulged that he and his siblings had each been molested by a male babysitter when they were under the age of ten. He thereafter was in counseling through the age of seventeen. He further indicated that his mother had been mentally abusive towards him, noting that she had not permitted him to live with his father following their divorce. The intake form reports that he told the case manager that he "lacks emotional and social immaturity [sic], because he makes inappropriate comments that are considered socially unacceptable."

Defendant admitted to experimental use of "marijuana, ecstacy, acid, and cocaine as a teenager." He had no prior arrests or criminal or juvenile dispositions.

The PTI director was amenable to admitting defendant into the program. However, the Essex County Prosecutor's Office issued a letter rejecting defendant's PTI application. The rejection letter declared that "the State is deeply concerned of the possibility of a threat of violence against yet undetermined persons."

Among other things, the prosecutor's rejection letter emphasized that defendant had concealed and disassembled his gun in two pieces of luggage, and that he had initially lied about its ownership. This conduct signified to the prosecutor that defendant's possession of the gun in his luggage "was in defiance of the law rather than a misunderstanding regarding the transportation of . . . guns in airplanes." In addition, the prosecutor expressed concern that defendant was found with topographical maps of areas along the United States border between Arizona and Mexico, as well as political advocacy materials and photographs of various politicians. The prosecutor also found noteworthy that defendant had a history of treatment for depression but had stopped taking his medication.

The prosecutor maintained that the aggravating factors disfavoring admission under the relevant PTI Guidelines, especially factors (1), (2), (3), (7), (10) and (17) under N.J.S.A. 2C:43-12e, outweighed the mitigating factors, namely factors (3), (6), (12), (13), (15), and (16), and warranted defendant's rejection from PTI. The prosecutor concluded that "defendant is a very serious threat for violence" and that "this case will be better served by traditional prosecution."

Defendant filed a motion with the trial court seeking to compel his admission into the PTI program, in spite of the prosecutor's opposition. In its brief responding to defendant's motion, the prosecution underscored the points set forth in its earlier rejection letter. The prosecutor stated that the present offense, involving an attempt to place an undeclared weapon onto a plane, was one that "causes significant public anxiety," particularly after the September 11, 2001 airplane hijackings and the attacks on the World Trade Center and the Pentagon. The prosecutor also referred to defendant's political materials, and the prospect that defendant might have wanted to use the firearm for politically-motivated violence.

With respect to defendant's mental health, the prosecutor noted:

Finally, the defendant has submitted a psychiatric evaluation to the court, in an attempt to undermine the State's position that [defendant] may be mentally unstable. Much of the report is in direct conflict with the information [defendant] provided Criminal Case Management ("CCM"). Due to the defendant's lack of candor with at least one of these parties, the State must stand by its original decision to reject the defendant. The State does not believe that the officer who conducted the defendant's intake interview lied or exaggerated the information in his report, as implied by his subsequent psychiatric evaluation. Furthermore, the defendant's lack of honesty during this process reflects very negatively on his prospects for rehabilitation. Therefore, in light of this newly received information, the State stands firmly by its initial decision.

The trial court entertained oral argument on the PTI issues. Defense counsel asserted that the prosecution's rejection was based in part on incorrect information, maintaining that defendant had never been diagnosed as depressive and that he did not require medication. Defense counsel also argued that the rejection letter's reference to the September 11th attacks was improper and that defendant's situation was not at all analogous. He contested the prosecution's characterization of defendant as a potential dangerous vigilante. Counsel further argued that the prosecutor had misapplied and incorrectly weighed the aggravating and mitigating factors under the PTI statute.

In response, the prosecution asserted that it had properly evaluated the totality of the circumstances. The prosecutor noted that public anxiety could rise if it were perceived that the State was not "vigorously prosecut[ing]" cases such as this involving weapons on planes. The prosecutor also focused upon the apparent inconsistencies between the psychiatric evaluation submitted in support of defendant's motion and what defendant had told the criminal case manager.

In his oral ruling, the trial judge acknowledged that mitigating factors are present here, and that he personally might have been more lenient with defendant if he had been the prosecutor. But the judge further acknowledged that the prosecutor "is entitled to take [the PTI statutory] factors into consideration," and that the law did not permit the judge to substitute his own views in place of the prosecutor's decision. As the judge summarized it:

There's nothing that I have before [me] to indicate that a decision to deny participation into pretrial intervention program to an individual who it is alleged brought a disassembled handgun into an airport, and thereafter, even an inoperable one, thereafter into a commercial airliner, or attempted to do so is not an appropriate [one] for the participation in the pretrial intervention program. As justified or unjustified as the public's concern might be under such circumstances, the fact that the prosecutor is interested in assuring that the public has as much confidence as it possibl[y] could have in the airline industry and in the process of securing the airline industry, and the air traffic the fact that they have that concern and the desire to do whatever is necessary to alleviate[,] within the bounds of the Constitution[,] the concern of the public, which concern is at least on some level very well-placed. It's not like, I understand that this hardly it's hardly comparable to what occurred on September the 11th. The fact of September the 11th raises the level of public concern.

We've had a significant amount of negative results in our society. And perhaps my personal view, above and beyond what was justified by the conduct, and the negative effect on the exercise of, and protection of Constitutional rights are ones that greatly concern me. But this isn't one of those cases. This is not a case where the reaction of the Prosecutor to the application was unconstitutional. And it was not a reaction that I would consider gross a gross and unjust abuse of discretion. It may have been incorrect. I don't know. I really can't even say that. But it may have been, but that's not for me to say.

Given these observations, the trial judge denied defendant's motion to compel his admission into the PTI program.

Having lost his motion to be admitted into PTI, defendant agreed to plead guilty to an accusation charging him with third-degree unlawful possession of a weapon, with the understanding that the prosecutor would recommend a term of non-custodial probation. The judge then accepted defendant's waiver of his right to have the charges considered by a grand jury for indictment. Defendant confirmed under oath his voluntary acquiescence to the terms in the plea form, his understanding of what offense he was pleading to, and the range of possible sentences. Defendant further acknowledged that he was waiving his right to trial by jury and the rights that he would have had should he have gone to trial.

Defendant then provided a colloquy with the factual basis for his guilty plea, specifically admitting that he had possessed a .22 caliber weapon in Newark on February 22, 2007, while lacking a permit to carry such a weapon lawfully in the State of New Jersey.

The trial court accepted defendant's guilty plea and entered a corresponding judgment of conviction under N.J.S.A. 2C:39-5(b). Two months later, the court sentenced defendant to one year of non-custodial probation, consistent with the recommendation in the plea agreement. As requested by defense counsel, the sentencing judge transferred defendant's probation to Philadelphia County, Pennsylvania, where defendant was then residing.

Defendant now presents the following points on appeal, including several jurisdictional issues that he did not raise in the trial court:

POINT I

SELECT AREAS OF GOVERNMENT ARE PREEMPTED BY THE FEDERAL GOVERNMENT, INCLUDING AIR PIRACY, NATIONAL SECURITY AND TERRORISM, WHICH BARRED A STATE PROSECUTION OF [DEFENDANT] IN THOSE AREAS[,] NOT RAISED BELOW

POINT II

THE FEDERAL COURTS HAVE EXCLUSIVE JURISDICTION OVER AIRCRAFT, NATIONAL SECURITY AND TERRORISM, [DEFENDANT'S] PROSECUTOR ABUSED HIS DISCRETION BY CONDUCTING A PROSECUTION OF THOSE SUBJECTS[,] NOT RAISED BELOW

POINT III

IT WAS PLAIN ERROR FOR THE COURT TO FAIL TO ESTABLISH DURING THE PLEA SENTENCING ITS TERRITORIAL JURISDICTION OVER [DEFENDANT'S] PROSECUTION, NOT RAISED BELOW

POINT IV

A FEDERAL STATUTE HAS PREEMPTED THE PROSECUTION OF ATTEMPTS TO BOARD AIRPLANES WITH HANDGUNS, THE PROSECUTOR ABUSED HIS DISCRETION BY RAISING ISSUES RELATED TO NATIONAL SECURITY, NOT RAISED BELOW

POINT V

[DEFENDANT] WAS DENIED DUE PROCESS AND EQUAL PROTECTION BECAUSE HE WAS PROSECUTED BUT NOT INDICTED FOR TERRORISM AND NATIONAL SECURITY, BY A VAGUE APPLICATION OF LAW, THIS WAS PLAIN ERROR, NOT RAISED BELOW

POINT VI

IT WAS PLAIN ERROR DURING PLEA PROCEEDINGS FOR THE COURT AND PROSECUTOR NOT TO ESTABLISH THE STATE[']S SUBJECT MATTER JURISDICTION TO HEAR A NATIONAL SECURITY CASE, NOT RAISED BELOW

POINT VII

[DEFENDANT'S] CIRCUMSTANCES SATISFY THE REQUIREMENTS FOR THE WITHDRAWAL OF HIS GUILTY PLEA, NOT RAISED BELOW

POINT VIII

THE COURT IGNORED MITIGATING FACTORS SUPPORTED BY CREDIBLE EVIDENCE AND THE PROSECUTOR DID NOT FOLLOW PUBLIC POLICY GOALS FOR ENTRY TO PTI, THIS CONSTITUTED PLAIN ERROR AND ABUSE OF DISCRETION IN THE SENTENCING OF [DEFENDANT], NOT RAISED BELOW

We have fully considered these arguments, and find none of them persuasive.

I.

With respect to defendant's jurisdictional contentions, we are satisfied that his conduct in possessing a firearm at an airport within the borders of New Jersey, without having a permit to do so, is a violation of our State's criminal code and is an offense that the State has the authority to prosecute. We reject defendant's claim that his State prosecution under N.J.S.A. 2C:39-5(b) is preempted by federal law.

Although we certainly respect and adhere to the fundamental principles of preemption in Article VI of the United States Constitution, which require inconsistent state laws to yield to overarching federal enactments, we are equally mindful that federal law does not preempt "the historic police powers of the States. . . unless that was the clear and manifest purpose of Congress." State v. Andros, 403 N.J. Super. 271, 279-80 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009) (quoting City of Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 432, 122 S. Ct. 2226, 2232, 153 L. Ed. 2d 430, 440 (2002)). Preemption applies in three circumstances: "(1) where Congress has expressly preempted state law; (2) where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; or (3) where federal law conflicts with state law." Piscitelli v. Classic Residence by Hyatt, 408 N.J. Super. 83, 107 (App. Div. 2009) (quoting Surrick v. Killion, 449 F.3d 520, 531 (3d Cir. 2006)). None of those circumstances pertain here.

We are satisfied that Congress has not expressly prohibited states from ever enforcing their criminal weapons statutes at airports within their state borders. We are further satisfied that federal laws, including those pertaining to aviation and anti-terrorism initiatives, have not comprehensively "occupied the entire field" to preclude States from enforcing their criminal weapons statutes at such locations. Lastly, we discern no conflict between federal and state law that requires the State to abandon the present case and to refrain from prosecuting similarly-situated possessors of firearms.

Defendant raises in his brief an assortment of federal statutes and regulations, which he contends preempt his prosecution for a State weapons offense. First, he invokes the general proposition that "[n]ational security matters and authority to conduct prosecutions related to national security are governed by a uniform national standard," citing to the historical and statutory notes of 22 U.S.C.A. 5501(a)(3)(8). This authority simply pronounces a uniform national standard to alert the public to threats to aviation security, and the federal policy to continue to seek to improve aviation security internationally. See 22 U.S.C.A. 5501-5513. The cited federal statute does not contain any express preemption language nullifying the ordinary application of state weapons laws. Nor is implied preemption implicated, as the statute does not create any conflict or incompatibility with state laws that might regulate aircraft security.

Defendant further asserts that "national security" and "terrorism" cases are under the exclusive jurisdiction of the federal courts. He invokes in this regard 18 U.S.C.A. 3231, which provides that "[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the states, of all offenses against the laws of the United States." Defendant's invocation of Section 3231 is misplaced. That statute does prevent state courts from hearing cases involving violation of federal criminal laws, but defendant was not charged here with any federal crimes. Moreover, there is no language within Section 3231 that preempts the states from adopting and enforcing their own laws that criminalize dangerous conduct that also happens to threaten national security.

Defendant further claims that the Essex County Prosecutor "acted outside [her] authority" in prosecuting defendant "based upon arguments of aircraft piracy, national security and terrorism." To support this claim, he cites various federal regulations involving the authority of the Attorney General of the United States to prosecute federal crimes. See 28 C.F.R. 0.55(a), 0.55(i), 0.72(a)(2) and 0.72(a)(7) (2009). Nothing in those regulations preempts states, and their respective prosecuting attorneys, from enforcing state criminal laws that punish behavior that can also constitute federal crimes.

Defendant further contends that federal statutes expressly and exclusively regulate "the prosecution of attempts to board aircraft in interstate commerce." In support of this contention, defendant cites to federal laws regarding the "special aircraft jurisdiction of the United States" and "aircraft piracy." See 49 U.S.C.A. 46501, 46502. However, defendant overlooks that the special aircraft jurisdiction of the United States under these statutes applies only to aircraft that are in flight, which is defined as "an aircraft from the moment all external doors are closed following boarding . . . through the moment when one external door is opened to allow passengers to leave the aircraft." 49 U.S.C.A. 46501(1)(A). Here, defendant had not yet boarded his flight, nor had his luggage been loaded aboard the plane. Hence, the special aircraft jurisdiction referred to in Sections 46501 and 46502 did not apply. In addition, there is nothing in these statutes that expressly preempts state laws or state jurisdiction. In fact, these particular federal statutes were designed to supplement, not supplant, existing state jurisdiction. See, e.g., United States v. Pliskow, 354 F. Supp. 369, 371-72 (E.D. Mich.), aff'd, 480 F.2d 927 (6th Cir. 1973).

The federal statutory provision on aircraft piracy cited by defendant, 49 U.S.C.A. 46502(a)(1)(A), requires the "seizing or exercising control of an aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent." It is undisputed that defendant's flight had not completed boarding and closed all external doors, thus the flight had not yet fallen within such special aircraft jurisdiction.

Additionally, defendant points out that Congress has expressly authorized the federal prosecution of attempts to board an aircraft with dangerous weapons in 49 U.S.C.A. 46505. In particular, subsection (b)(2) of Section 46505 provides that "[a]n individual shall be fined under [Unites States Code] title 18, imprisoned for not more than 10 years, or both, if the individual . . . (2) has placed, attempted to place, or attempted to have placed a loaded firearm on that aircraft in property not accessible to passengers in flight." Under this statute, "'loaded firearm' means a starter gun or a weapon designed or converted to expel a projectile through an explosive, that has a cartridge, a detonator, or powder in the chamber, magazine, cylinder, or clip." 49 U.S.C.A. 46505(a). Even if defendant's conduct here were hypothetically viewed as an attempt to place a "loaded firearm" on an aircraft in violation of 49 U.S.C.A. 46505(b)(2), there is nothing in that federal statute which expressly or impliedly preempts state laws from regulating the same wrongful conduct. Defendant concedes as much, stating in his brief that "[t]he state prosecutor only had authority to prosecute an illegal gun possession case." That is exactly what this state prosecution under N.J.S.A. 2C:39-5(b) was: an illegal gun possession case.

Defendant maintains that he was prosecuted by the State of New Jersey for something other than illegal gun possession, i.e., for "an act of air piracy/terrorism." That is not so. The accusation to which defendant pleaded guilty in this case charged him solely with illegal gun possession. The factual basis elicited in defendant's plea colloquy addressed only the elements of N.J.S.A. 2C:39-5(b), and did not get into why defendant had the gun or what he intended to do with it. It was unnecessary for the State to prove elements of "aircraft piracy" or "terrorism" to gain a conviction.

To be sure, the fact that defendant illegally possessed a firearm at an airport, rather than at some other locale implicating lesser public safety concerns, bore upon the severity of the offense and, consequently, the court's PTI eligibility and sentencing analyses. But the physical locale of the possession did not transform the criminal accusation here to one in which the State would have had the evidentiary burden of proving anything more than an illegal act of gun possession under N.J.S.A. 2C:39-5(b). The airport-related public safety considerations that supported defendant's exclusion from PTI were not elements of his state law firearms offense.

Defendant also relies upon cases that confirm the federal government's jurisdiction to prosecute crimes that take place on federal property. Based on these cases, he contends that the trial court erred in exercising territorial jurisdiction over the property at Newark Airport. This argument fails, however, because Newark Airport is not property of the United States. The airport is operated by the Port Authority of New York and New Jersey, a bistate agency, under a lease from the City of Newark. See N.J.S.A. 32:1-1 to -24. The Port Authority is legislatively delegated control of the air terminals located within the Port of New York District. N.J.S.A. 32:1-35.1 to -35.24. State law specifically confers upon the Port Authority police force the power to make arrests. N.J.S.A. 32:2-25.

Defendant's initial detention and his arrest were carried out by members of the Port Authority police force, not by federal agents. Although federal agents did question defendant after his arrest by the Port Authority police, that does not bring defendant's criminal case under federal jurisdiction when those federal agencies took no further action against him and he was not charged with any federal crimes.

Further attempting to divest the State of jurisdiction, defendant cites to 18 U.S.C.A. 926A, a federal statute that addresses firearm transport across state lines:

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle.

[18 U.S.C.A. 926A (emphasis added).]

Defendant maintains that he complied with Section 926A's requirements "that the person lawfully possess the gun in its place of origin before its [being] transported." However, although defendant did legally purchase the .22 handgun in Ohio, that initial fact only satisfies part of the requirements of Section 926A. Defendant must also be able to lawfully possess and carry the firearm at the place to which he transports it. 18 U.S.C.A. 926A.

Nothing in the record indicates that defendant would have been lawfully allowed to possess and carry the firearm in the Netherlands after disembarking from his flight to Amsterdam. In fact, defendant does not argue that he would have been able to do so under Dutch law. Moreover, although Section 926A allows for the interstate transport of certain firearms through a state of the United States where that firearm would be illegal, it does not preempt state laws that regulate firearms within the state. See Coalition of New Jersey Sportsmen v. Florio, 744 F. Supp. 602, 609 (D.N.J. 1990).

In sum, defendant's state criminal prosecution under N.J.S.A. 2C:39-5(b) was not preempted by any federal laws or regulations. We affirm the trial court's proper exercise of its jurisdiction in this case.

II.

Having determined that the State properly exercised its criminal jurisdiction here, we turn to defendant's assertion that the trial court erred in declining to admit him into PTI over the State's objection.

As created in N.J.S.A. 2C:43-12e and as implemented in our criminal courts under Rule 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 guided by seventeen factors enumerated in the PTI statute. N.J.S.A. 2C:43-12e(1) to -12e(17); see also R. 3:28.

Recognizing "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). Such 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)).

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 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).

"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 our 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)).]

Upon carefully reviewing the record in light of these standards, we are satisfied that the prosecutor's opposition to defendant's PTI application was founded upon appropriate factors and did not comprise a "patent and gross" abuse of discretion. Like the trial judge, we recognize that some mitigating factors are present here, including, among other things, the fact that defendant has apologized for what he did and that he may be amenable to rehabilitation. Even so, there are more than ample grounds here providing reasonable support for the prosecutor's decision.

The special dangers posed by a firearm in an airport or aircraft, the heightened need for deterrence of criminal acts in such public places, and the need to maintain overall public confidence in the safety of airports and air travel are among those legitimate aggravating considerations. The prosecution also was justifiably troubled by defendant's reported mental health history and his apparent cessation of medication.

In addition, we discern no error in the references to the events of September 11 in the prosecutor's rejection letter and in the trial court's analysis, insofar as those references simply underscore the need in our present times for greater caution in protecting against conduct that may imperil the public safety. The trial court's denial of defendant's motion to compel his admission into PTI is affirmed.

III.

We have fully considered the balance of defendant's arguments, including his constitutional claims of a denial of due process and equal protection and his claim that he should now be permitted, post-sentencing, to withdraw his guilty plea. Because those arguments lack sufficient merit to be addressed in this written opinion, we affirm defendant's conviction and bargained-for sentence without further comment. R. 2:11-3(e)(2).

Affirmed.

 

Because of the personal mental health information considered by the trial court in denying defendant's admission into the PTI program, we impound the record and refer to defendant by initials.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Neither party has provided a copy of this evaluation in their appendix.

By way of illustration, in 2002, the New Jersey Legislature enacted the "September 11th, 2001 Anti-Terrorism Act," N.J.S.A. 2C:38-1 to -5, a state statute that has not been voided as unconstitutional.

(continued)

(continued)

25

A-4487-07T4

RECORD IMPOUNDED

October 9, 2009