STATE OF NEW JERSEY v. E.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0227-07T40227-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

E.A.,

Defendant-Appellant.

_______________________________

 

Submitted January 12, 2010 - Decided

Before Judges Carchman and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-12-2138-I.

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

Anne Milgram, Attorney General, attorney for respondent (Mary McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant E.A. appeals from a Law Division order denying his motion to set aside the rejection of his application to be admitted into the Pretrial Intervention (PTI) program over the objection of the Hudson County Criminal Division Manager and County Prosecutor, and from the sentence imposed on his guilty plea conviction for fourth-degree failure to notify authorities of his relocation. N.J.S.A. 2C:7-2(d). Defendant was sentenced to a one-year term of non-custodial probation and requisite fines and penalties were imposed. Following our review, we conclude, under the circumstances of this case, the Prosecutor's rejection of defendant's application for PTI included irrelevant factors and failed to sufficiently demonstrate a careful consideration of the facts in light of the applicable law. State v. Wallace, 146 N.J. 576, 584 (1996); State v. Sutton, 80 N.J. 110, 117 (1979). Accordingly, we reverse and remand to the Law Division to allow the Prosecutor's Office to perform a measured review of the facts presented and reassess defendant's eligibility for PTI pursuant to the Guidelines set forth in Rule 3:28. State v. Bender, 80 N.J. 84, 94 (1979).

Prior to this offense, defendant's only encounter with the justice system occurred when he was a juvenile. The investigation report prepared in that adjudication states that on September 1, 1997, defendant's younger brother, H.A., "induced or compelled" a neighbor, age six, to commit an act of fellatio on defendant while he was taking a nap. State v. H.A., No. A-4039-05T2 (App. Div. December 4, 2006) (slip op. at 2). Defendant, then age fourteen, and H.A., who was eleven, were adjudicated delinquent for conduct, that if committed by an adult, constituted the offenses of sexual assault, N.J.S.A. 2C:14-2(a), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The court sentenced defendant to two years probation. As a consequence, he became subject to the lifetime registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -21. Specifically, defendant was required to register as a sex offender and notify police of any change of address. N.J.S.A. 2C:7-2(c), (d).

Defendant had no prior or subsequent juvenile or adult arrests, and there is no evidence he ignored his Megan's Law obligations until, at age twenty-three, he was indicted for the subject offense. On July 13, 2006, an investigator from the Jersey City Police Department attempted to hand-deliver a certification-of-service package to defendant at his last known address. Defendant was no longer residing in that apartment, and the investigator was told he had moved "several months" earlier. Telephone calls placed to the number defendant listed in an earlier registration went unanswered.

On July 20, 2006, defendant was arrested for his failure to notify the Jersey City Police of his change of address. He explained he left his apartment after being laid off from his job and was unable to pay his rent. He was temporarily staying in Newark, where he stated he had registered but did not inform Jersey City of the move. Defendant suggested he did not realize he had an obligation to notify Jersey City, as well as Newark. The record shows defendant returned to Jersey City on August 1, 2006 and registered, listing his prior Newark address. On August 14, 2006, defendant again presented himself to the Jersey City Police Department. On November 8, 2006, defendant was indicted for the subject offense.

Defendant applied for admission to the PTI program. On February 23, 2007, the Criminal Division Manager issued a written recommendation that he not be considered for enrollment. Thereafter, the Hudson County Prosecutor's Office rejected defendant's PTI application relying on statutory factors: (1) the nature of the offense, N.J.S.A. 2C:43-12(e)(1); (2) the facts of the case, N.J.S.A. 2C:43-12(e)(2); (3) the motivation and age of the defendant, N.J.S.A. 2C:43-12(e)(3); (7) the needs and interests of the victim and society, N.J.S.A. 2C:43-12(e)(7); (14) whether the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution, N.J.S.A. 2C:43-12(e)(14); and (17) whether the harm done to society by abandoning criminal prosecution would outweigh the benefit to society from channeling an offender into a supervisory treatment program, N.J.S.A. 2C:43-12(e)(17).

The State's justification for opposing defendant's candidacy for PTI was set forth in a memorandum issued by the Criminal Division Manager and in the State's brief submitted in opposition to defendant's application for judicial review. Describing the nature of the offense -- "a violation of [d]efendant's Megan's Law obligations" -- the State suggested defendant's single juvenile adjudication "should work against [him]" because of "the primary role that the [d]efendant played in the [s]exual [a]ssault[.]" As to factor two, the State argued "[t]here has been nothing provided . . . which mitigates the actions by the [d]efendant" as he had been registered for nine years, and was "aware[] of his responsibilities and [it was] his conscious decision to violate those responsibilities."

Despite acknowledging defendant was employed and had no substance abuse history, the State cited factor three, which examines defendant's age and motivation, and suggested defendant used "an alias, as evident from the juvenile adjudication," and was "a registered sex offender for life." The State argued defendant's statement that "he did not realize he had to tell Jersey City that he moved because he registered in Newark" was discredited because he knew of his registration obligations and was instead "hiding his address."

Inclusion of factor seven was based on "the need to protect society from Megan's Law offenders," and the assertion that the failure to maintain a registration was not a victimless crime, as "society was the victim of defendant's offense." Regarding factor fourteen, the State defended its right to prosecute Megan's Law offenders, stating "[a]ny violation that jeopardizes public safety should be deterred by criminal penalties." Further, the State maintains any benefit defendant would derive from PTI is exceeded by the State's interest in deterrence as "[v]iolating Megan's Law should be viewed as a breach of the public trust." Finally, factor seventeen, which assesses the harm to society, was included by the State because "abandoning this prosecution, which is a serious offense," "undermine[s] Megan's Law and send[s] a message to registrants that you can get a 'second bite [of] the apple' if you do not comply with your registration and notification obligations." The State asserts "it is clear what type of harm [would be] pose[d] to the community if this crime were not prosecuted" and that "society would not benefit from channeling this [d]efendant into another form of supervisory treatment."

Defendant sought review of the State's rejection. During a March 22, 2007 hearing held before the Law Division, defendant challenged what he characterized as the Prosecutor's Office's "struggle to create a PTI exception for Megan's Law offenders." This colloquy between the Prosecutor and the court followed:

THE COURT: Can you consider . . . any person charged with . . . this fourth degree offense who has no other criminal record and who has no adult record because it's a juvenile adjudication that underlies the need to register under Megan's Law[?] Can you conceive of any situation where someone would be permitted to have PTI?

[THE PROSECUTOR]: Judge, as a matter of fact I could, and I guess the first name that comes to mind is his brother.

THE COURT: Well, your office opposed that.

. . . .

That was me and the Appellate Division that said his brother could have PTI.

[THE PROSECUTOR]: And I read that all and I think -- and I'm using that as an example. I think there's clearly a difference between that case which Your Honor decided and this case here on the basis of the nature of the underlying case and the role that both people played in that. As well as the nature of this case.

In the case that Your Honor decided in the past, that defendant tried to register. There were some issues with his schooling, stuff like that. In this case here, this defendant registered consistently for ten years, roughly ten years, since he was 15 years old.

[A]t certain points he told the outgoing municipality that he was going someplace else . . . . He told the municipality that he was leaving and where he was going.

In this case, Judge, the defendant just decided to move. All right? And that is clearly a concern to my office and it clearly should be a concern of society[.]

. . . .

THE COURT: So . . . you say that the one . . . case that you can think of is [his] brother, but remember that your office vehemently opposed that [] application, appealed my overruling of it and took it to the Appellate Division, which . . . agreed with me.

. . . .

Because what happened in the [H.A.] case was, a representative of your office made very clear statement that your office never permits anyone with this charge to go into PTI.

And, of course, as we know, blanket proscriptions against PTI for any class of offense in the third and fourth degree range are not permissible.

. . . .

Well I'll be waiting for the one where your office agrees that the person [is] a suitable person for PTI.

At the conclusion of argument, the court made these findings:

The quandary here for me, [c]ounsel, is separating my feeling that [defendant] would be an okay candidate for PTI with the burden that there is [sic]. And, you know, because we've been talking about his brother [H.A.,] and that's clearly on everybody's mind[.] . . . [Although] they were both in the same underlying offense, there are some factual differences between the two cases . . . .

It was significant to me that [H.A.] was only 11 years old when he had this underlying conviction. He was so young and . . . he continued to lead a law-abiding life after that . . . and had some confusion[] . . . with his living arrangements . . . . He seemed to be trying.

And I'm not saying [defendant] is not doing the same . . . . I don't think he has an alias or an a/k/a or anything like that. I think he just has . . . a nickname . . . . Well, of course, he was older at the time of the underlying offense.

[T]his case comes very differently from the way [H.A.'s] came [about]. [H.A.'s] was all found [sic] on mistake and misapprehension that -- and as well as the clear statement that the Prosecutor's Office wasn't going to take anybody charged with this offense into PTI[.]

And that was such a patent abuse of discretion because it was based on a factual misapprehension and . . . a legally incorrect basis[,] which is the blanket proscription[.]

Now [defendant's] case [i]s . . . just a clear failure to register when he knew he should because he had done it before. And he is older than his brother. His brother clearly had some impediments[.]

On March 29, 2007, defendant pled guilty to the offense charged and was later sentenced to a one-year probationary term. Applicable fines and penalties were imposed. Defendant completed his probationary sentence without incident while this appeal was pending.

To understand the context of defendant's arguments on appeal, the court's references to defendant's brother's case requires further explanation. H.A. was also adjudicated delinquent as a result of the September 1, 1997 sex offense. In the spring of 2005, H.A. was arrested for failure to comply with the annual registration requirements of N.J.S.A. 2C:7-2(e) and failure to register a change of address in violation of N.J.S.A. 2C:7-2(d). H.A., supra, slip op. at 3-4. An assistant county prosecutor appeared at a status conference held on October 3, 2005, and advised there was an unofficial policy in the Hudson County Prosecutor's Office to deny all PTI applications "for defendants who are charged with Megan's Law notice and registration violations." Id. at 4.

The court required additional written submissions with a more "individualize[d]" presentation of whether H.A. should be admitted to PTI. Id. at 8. Upon receipt of the submissions, the Law Division judge identified these facts not considered by the prosecutor in rejecting H.A.'s application for PTI: the investigator misread the address reported on H.A.'s file; H.A. had appeared to re-register and was told to return at a different time; H.A., who was only nineteen, experienced problems at home resulting in frequent moving; and H.A. had demonstrable cognitive delays. Id. at 2-5. The court overturned the prosecutor's denial of H.A.'s PTI application, noting:

[T]he State's argument really seems to be a tautological argument. He can't go into PTI because he's suppose to register and he didn't register, that's why he has the offense for which he is seeking consideration for PTI.

. . . .

The State can't focus on any other applicant who would be permitted into PTI under circumstances such as this[.]

. . . .

I'm not really certain who would be permitted into PTI for a failure to register if not [H.A.]. The State has not been able to show me . . . what would be the circumstances where someone would be permitted into PTI for a failure to register.

[Id. at 8, 10-11.]

In our review, we rejected the State's arguments on appeal and affirmed the trial judge's determination. We concluded that the State's use of the blanket policy, which excluded H.A. from PTI because he was charged with a Megan's Law violation, was an abuse of prosecutorial discretion. Id. at 12.

Defendant challenges his rejection and argues he too was a victim of this unofficial exclusionary policy. He argues the State's analysis of his PTI application included inapplicable factors and ignored his individual circumstances. Defendant maintains he would benefit from the structure of PTI as he successfully completed his juvenile probation, graduated from high school, and obtained employment despite cognitive delays. He asserts the State must consider he has no criminal or substance abuse history except for "a nearly ten-year-old" juvenile adjudication, is married and has a child, remains employed, and that financial difficulties after a temporary lay-off were the root cause of his housing instability.

The State insists there is no policy to reject offenders who violate Megan's Law from PTI and renews its arguments presented before the Law Division to support the denial of defendant's PTI request.

The trial judge's conclusion regarding the State's decision to reject a PTI application is a question of law. State v. Nwobu, 139 N.J. 236, 247 (1995). Therefore, our review is de novo, as "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

As we consider the trial court's decision, we remain mindful that a prosecutor's refusal to consent to the diversion of a particular defendant is a prosecutorial function to be afforded considerable deference. Wallace, supra, 146 N.J. at 582; State v. DeMarco, 107 N.J. 562, 566 (1987). The initial decision to accept or reject a defendant's PTI application lies within the scope of the prosecutor's discretion in selecting "whom to prosecute and whom to divert to an alternative program, such as PTI." Wallace, supra, 146 N.J. at 582 (citing State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II)). "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) (citing State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)); DeMarco, supra, 107 N.J. at 566. "As a practical matter, our standard of review translates into a high burden for defendants." State v. Brooks, 175 N.J. 215, 225 (2002).

However, a prosecutor's discretion in reviewing a defendant's request for consideration in PTI is not "unbridled." Wallace, supra, 146 N.J. at 582; see State v. Baynes, 148 N.J. 434, 451 (1997) (invalidating prosecutor's per se rule denying PTI to any defendant committing school-zone drug offense). Although severely limited, "[j]udicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384). Accordingly, a defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [PTI] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382; Bender, supra, 80 N.J. at 89-90.

In Bender, supra, the Court elaborated on the "patent and gross abuse of discretion" standard, stating:

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.

[80 N.J. at 93 (citation omitted).]

A prosecutor's review of an offender's application for PTI must be informed by certain principles. First, "PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting Sutton, supra, 80 N.J. at 119). Second, the State's determination, based on the specific facts presented, must be guided by the relevant statute and Court Rule. N.J.S.A. 2C:43-12(e); R. 3:28, Guideline 3 (2010). Per se exclusions of certain offenders from PTI, outside the structure of the stature and Rule, cannot be sustained as an exercise of reasoned discretion. Brooks, supra, 175 N.J. at 224-25.

With these principles in mind, we review the Prosecutor's determination in light of defendant's arguments that the State considered irrelevant or inappropriate factors and failed to consider all relevant factors. We will address each point relied upon by the State.

In assessing the nature of the offense described in factor one, and the facts of this case, factor two, we note certain defendants are subject to the "'presumption against [PTI] acceptance.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting Baynes, supra, 148 N.J. at 434). Specifically, Guideline 3 of Rule 3:28 identifies

among others, violent criminals 3(i)(3); persons who breach the public trust 3(i)(4); first- and second-degree offenders whose crimes bear a presumption of incarceration; and those non-drug addicted individuals who sell Schedule I and II narcotics for profit. What those offenders have in common is that they have committed crimes that are, by their very nature, serious or heinous and with respect to which the benefits of diversion are presumptively unavailable.

[Watkins, supra, 193 N.J. at 523.]

It is appropriate to reject an offender as a candidate for PTI only when "the Guidelines express a presumption of ineligibility[;]" otherwise, "[a]ny defendant charged with a crime is eligible for PTI." State v. Caliguiri, 158 N.J. 28, 36 (1999). Defendant's offense does not fall within these stated categories as it was not violent, and defendant has no substance abuse history. Also, the Law Division judge correctly disregarded the State's suggestion that defendant's offense denoted a breach of the public trust. "The public trust doctrine concerns only persons whose crimes have threatened the public at large, or have been directly related to the trust reposed in such person." State v. Humphreys, 89 N.J. 4, 21 (1982) (Pashman, J. dissenting).

The State also asserts defendant's juvenile conviction is weighty because of his "primary role" in the sexual assault. The record before us shows defendant was not the primary actor in that offense. It was H.A. who "induced or compelled" the young neighbor to fellate defendant while he napped. Although defendant's juvenile conviction may be cited, the adjudication alone does not disqualify him from PTI consideration. See Brooks, supra, 175 N.J. at 232 (holding a prosecutor is not precluded from considering a PTI applicant's juvenile history). Here, the State inaccurately enhanced the facts supporting the adjudication to prop-up its decision to reject defendant's PTI application. We determine nothing about the nature of this offense that militated against diversion into PTI.

Next is factor three, which considers defendant's motives and age. Defendant was twenty-three when he committed the charged offense. The Prosecutor noted defendant used an alias and, over the nine years since his juvenile arrest, had reported his change of address to the police both where he had been residing and in the municipality of relocation. N.J.S.A. 2C:7-2(d). Therefore, the State concluded defendant willfully tried to elude his registration responsibilities.

The State's assertion that defendant used an alias presumably was advanced to reinforce the suggestion defendant was motivated to hide his identity. The Law Division judge rejected this claim, noting the alternative name cited was merely defendant's nickname. There was no evidence supporting defendant's alleged attempt to hinder detection by using an alternate identity. Similarly, the record does not clearly refute defendant's statement that he properly registered in Newark when he moved and only failed to inform Jersey City. If defendant's statement is correct, the State's contention that he was motivated to hide his address falls away.

In addition to these erroneous assertions, our review discerns a flaw in the State's analysis of including factor seven, which assesses the needs of society. The Prosecutor states "society was the victim of defendant's offense," and it needs to be protected from Megan's Law offenders. The Prosecutor's justification is specious. Every offense can be characterized as an affront to the interests of organized society. The use of such generalized constructs is inappropriate in the review of a defendant's PTI application, which must be "individualistic in nature." Sutton, supra, 80 N.J. at 119.

Defendant was fourteen when the underlying offense occurred. Admittedly, he was older than H.A., but he too was very young and had not been convicted of a crime. See State v. Monahan, 15 N.J. 34, 46 (1954) (Heher, J. concurring) (stating
("a child under the age of 16 shall be deemed incapable of committing a crime" but rather "such misconduct shall be treated as 'juvenile delinquency'"). The record shows he did not initiate or induce the sexual contact, and the offense was influenced by the fact that his sister's twenty-four-year-old boyfriend had showed him and H.A. pornographic films. H.A., supra, slip op. at 18. Additionally relevant are the facts that defendant had properly registered for over nine years, avoided any other criminal conduct, completed high school, remained employed, married, and became a father. These considerations must be weighed in a determination that assesses defendant's "amenability to correction" and potential "responsiveness to rehabilitation." N.J.S.A. 2C:43-12(b).

Turning to the State's inclusion of factor fourteen, the Prosecutor defended the right to prosecute Megan's Law offenders, stating "[a]ny violation that jeopardizes public safety should be deterred by criminal penalties," and any benefit defendant would derive from PTI is exceeded by the State's interest in deterring Megan's Law offenders. Likewise, factor seventeen was cited, suggesting defendant demonstrated "a reckless disregard for the law" and that "abandoning this prosecution" . . . "undermines Megan's Law and sends a message to registrants that you can get a 'second bite of the apple' if you do not comply with your registration and notification obligations."

The Prosecutor's characterization of defendant as one who holds willful "disregard for the law" is unsupported and ignores other facts evincing the potential for rehabilitation, including defendant's steady compliance for nine years until faced with a job loss and eviction. Likewise, the State gives no consideration to defendant's unfortunate financial strain, which necessitated his temporary move; alleged registration in Newark, and voluntary registration when he returned to Jersey City; successful completion of juvenile probation, not to mention his probationary sentence for this offense; and avoidance of all criminal acts over an extended period of time. We agree with defendant that the State's portrayal of him, as one who has not "been deterred from his criminal activity" and who displays "a reckless disregard for the law," is patently incorrect.

Although the State's analysis focuses on the possible harm to society by defendant's offense, it does not review the possible societal benefits if defendant is accepted into PTI such as (1) providing offenders with early rehabilitation, if that service will deter future criminal conduct; (2) offering an alternative to offenders who would be harmed by traditional prosecution; (3) providing a less burdensome prosecution for offenders charged with "victimless" offenses; (4) assisting prosecutors in pursuing serious criminal matters by removing less serious cases from the criminal calendar; and (5) deterring future criminal conduct by PTI participants. N.J.S.A. 2C:43-12(a)(1)-(5). The Court "has also repeatedly emphasized the role of PTI in augmenting the criminal justice system and enhancing the prosecutor's options." Caliguiri, supra, 158 N.J. at 35-36 (citing Wallace, supra, 146 N.J. at 581; Nwobu, 139 N.J. at 240-41; Dalglish, supra, 86 N.J. at 509).

Therefore, a proper balance of the these factors includes not only the potential societal harm caused by the offense but also an analysis of the benefits to society by allowing defendant's admission. As demonstrated by our review, the State's lopsided rejection of defendant's PTI application omits the necessary review of defendant's prospects for rehabilitation under PTI.

We also are not persuaded by the Prosecutor's renunciation of the prior inadvertent revelation of an informal policy to reject PTI applications of all Megan's Law offenders. The State's denial of the existence of such an improper policy is belied by the justification analysis submitted. Pervading the Prosecutor's decision to deny defendant's application is an expressed emphasis on his juvenile adjudication and Megan's Law violation, rather than an analysis of the facts surrounding whether the offense warrants PTI consideration. When pressed during argument, the Prosecutor could not suggest any Megan's Law offender worthy of PTI admission except defendant's brother, who was admitted only after we affirmed the trial court's determination to vacate the Prosecutor's rejection. Moreover, the State has inaccurately skewed the facts of defendant's juvenile adjudication to apply factor one, failed to review defendant's assertion that he properly registered in Newark when he moved, possibly eclipsing the conclusion defendant willfully evaded his Megan's Law registration requirements, omitted ameliorating information evincing defendant's amenability to correction, misinterpreted factor seven by casting society as the victim of defendant's victimless offense, and disregarded an individualized analysis of defendant's reasonable prospects of rehabilitation with the purposes of PTI.

"The nature of the PTI program suggests that categorical rejections must be disfavored." Caliguiri, supra, 158 N.J. at 39. The Prosecutor must analyze each individual's application to determine the appropriateness of PTI candidacy. Following our review, we conclude the Prosecutor has improperly reviewed the statutory factors in his rejection of defendant's PTI application. Accordingly, fundamental fairness requires that we reverse the order and remand the matter to the trial court to strike those factors identified as inapplicable, and to permit the Prosecutor to reassess defendant's eligibility in light of all relevant information, including those facts we have

discussed that ameliorate against prosecution and favor PTI. Bender, supra, 80 N.J. at 94.

 
Reversed and remanded.

The rejection letter prepared by the Criminal Division Manager identified factors one, two, three, and seventeen as the basis for the recommendation. The State's brief, submitted in preparation for the hearing on defendant's request for the Law Division's review, added factors seven and fourteen.

(continued)

(continued)

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A-0227-07T4

RECORD IMPOUNDED

March 17, 2010