STATE OF NEW JERSEY v. DAVID HALPERIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3986-08T43986-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID HALPERIN,

Defendant-Appellant.

__________________________________________________

 

Argued February 9, 2010 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 08-08-2589.

Scott Gorman argued the cause for appellant (Rem Zeller Law Group, attorneys; Joseph P. Rem, Jr., of counsel; Mr. Gorman, on the brief).

Jennifer Fetterman, Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms. Fetterman, of counsel and on the brief).

PER CURIAM

Defendant David Halperin appeals from the January 5, 2009 order that affirmed the rejection of his application for admission to the Pre-trial Intervention Program (PTI) by the program director and the Essex County Prosecutor. He argues that the rejection by the director "represented a gross and patent abuse of discretion because [she] failed to consider all of the pertinent factors." As to the prosecutor, defendant contends that her "decision not to join in [defendant's] application represented an abuse of discretion because undue weight was placed on an inappropriate factor and the factors were inappropriately weighed." Defendant further contends that "application of the facts of [his] situation to the statutory criteria for PTI admission reveals that [he] is an ideal candidate for PTI."

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The Essex County grand jury returned Indictment No. 08-08-2589 charging defendant and Morgan McAllister with possession of heroin in the third degree, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1(a). In a separate complaint, defendant was also charged with possession of drug paraphernalia, N.J.S.A. 2C:36-2, two tightly-rolled dollar bills. Defendant applied for PTI.

On October 17, 2008, defense counsel submitted a letter to the Criminal Case Manager and the prosecutor in which he noted that because defendant was charged with a second-degree offense, "[he] must present compelling reasons for his admission into the [PTI] program." The letter addressed each of the seventeen "criteria" that "[p]rosecutors and program directors shall consider in formulating their recommendation of an applicant's participation" in the program. See N.J.S.A. 2C:43-12(e).

In particular, defendant, who was twenty-two years old when arrested, claimed that the 150 "slips of heroin" he possessed with McAllister were for his personal use; that he immediately entered an in-patient substance abuse program after his arrest, and was continuing his treatment in an "in-patient halfway house"; that he was a third-year student at Marywood University in Scranton, Pennsylvania, "majoring in nursing"; and that he had no prior arrests. Also attached were sixteen letters from defendant and various friends and family members in support of his admission.

On October 22, the director responded. While noting that defendant's "dependency on illegal narcotics[,] . . . the length of time [he] has been drug dependent, [his] recognition of his addiction[,] and the impact on [his] completion of the nursing program . . . supported . . . defendant's acceptance into . . . PTI[,]" the director also noted that defendant was charged "with a . . . second-degree offense." Concluding defendant's "submission [did] not show[] compelling reasons justifying his admission," the director rejected the application.

On November 5, the prosecutor notified defense counsel that she "w[ould] not consent to [defendant's] enrollment into" PTI. She noted that on the night of his arrest, defendant was a passenger in a car driven by McAllister that was parked at a shopping center in West Orange. After police officers noticed both were acting suspiciously, they approached the car and asked to speak to defendant. McAllister began to cry and blurted out that she "had only come for the ride." In her wallet, police found a small envelope of heroin; in a green canvas bag on the floor of the car near the passenger seat, police found 150 folds of heroin, and additional heroin was found in cigarette boxes in the car.

In the balance of her six-page letter, the prosecutor reviewed the statutory criteria, and concluded there were eight "aggravating factors . . . relevant in th[e] case." Concerning "[t]he nature of the offense[,]" N.J.S.A. 2C:43-12(e)(1), she noted that defendant "[wa]s presumptively ineligible for PTI due to the serious nature of the" crime, i.e., a second-degree offense. She further noted that "[t]he facts of the case" suggested that defendant possessed the heroin with intent to distribute it for financial profit, as opposed to personal use. See N.J.S.A. 2C:43-12(e)(2). Citing the myriad consequences of drug distribution on individuals and society, the prosecutor noted that "[t]he needs and interests of the victim and society[,]" N.J.S.A. 2C:43-12(e)(7), favored prosecution over diversion.

The prosecutor further observed that defendant's admission that he was using heroin since age sixteen demonstrated "a continuing pattern of anti-social behavior[,]" N.J.S.A. 2C:43-12(e)(8), and that "the public need for prosecution" outweighed any supervisory treatment. N.J.S.A. 2C:43-12(e)(14). Noting McAllister's open indictment, the prosecutor concluded that the State's interests would be better served "through traditional criminal justice system procedures[,]" N.J.S.A. 2C:43-12(e)(15), and that defendant's admission into PTI "w[ould] adversely affect the prosecution of McAllister. See N.J.S.A. 2C:43-12(e)(16). Finally, the prosecutor concluded that society would be better served through defendant's prosecution. N.J.S.A. 2C:43-12(e)(17).

The prosecutor also identified six "mitigating factors." She noted defendant was "relatively young," N.J.S.A. 2C:43-12(e)(3), and that his drug addiction made his "interest in receiving drug treatment outside of the criminal justice system" a factor in favor of his admission to PTI. See N.J.S.A. 2C:43-12(e)(5). The prosecutor also concluded that defendant ha[d] no prior criminal record, that the crime was not one of violence, that defendant "ha[d] no history of violence," and that he had no "involve[ment] with gangs or organized crime." See N.J.S.A. 2C:43-12(e)(9), (10), (12), and (13).

Defendant separately appealed both the director's and prosecutor's rejections. After considering oral argument over two days, the judge issued a short, written opinion denying defendant's appeals and affirming his rejection from PTI. She concluded that "[d]efendant ha[d] not met his burden of showing a patent and gross abuse of discretion on behalf of the prosecutor." Answering defendant's assertion that his rejection rested on the faulty premise that the heroin he possessed was for distribution, and not his personal use, the judge noted that "[a]ny factual dispute" in this regard was "an issue for trial and not [d]efendant's amenability to the rehabilitative process." Rebutting defendant's argument that the prosecutor relied solely upon the nature of his offense in rejecting his application, the judge noted that based upon the prosecutor's statement of reasons, "this was not the sole factor." The judge entered the order under review.

Pursuant to a plea bargain reached with the State, defendant pled guilty to possession of heroin. The judge imposed only the mandatory penalties and fees without any probationary sentence. This appeal followed.

II.

We begin by recognizing the standards that inform our review. Prosecutors are permitted "wide [discretion] 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 State v. Nwobu, 139 N.J. 236, 246 (1995)). "Because of the recognized role of the prosecutor, we have granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI." State V. DeMarco, 107 N.J. 562, 566 (1987)(citing State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)). As a result, the scope of our review "is severely limited . . . [and] 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)) (citations omitted). "The question is not whether we agree or disagree with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.

"The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993). In order for a defendant to overturn the prosecutor's denial of his admission, he must "clearly and convincingly establish that the prosecutor's refusal . . . was based on a patent and gross abuse of his discretion . . . ." Ibid. (citations and quotations omitted) (emphasis omitted). A defendant can demonstrate an abuse of discretion "if [he] 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." State v. Bender, 80 N.J. 84, 93 (1979). "[S]uch an abuse of discretion . . . rise[s] to the level of 'patent and gross' . . . [whenever it] clearly subvert[s] the goals underlying [PTI]." Ibid. Applying these standards to the case at hand, we conclude that defendant's arguments are without merit.

Defendant contends that the director's statement of reasons for rejection focused solely on the nature of the offense, i.e., second-degree possession with intent within 500 feet of public property, and did not consider the individual criteria set forth in N.J.S.A. 2C:43-12(e). While we might agree with that assertion, it is of no moment, in light of the prosecutor's rejection that followed.

Defendant was charged with a second-degree crime and presumptively was not eligible for admission to the program. See Nwobu, supra, 139 N.J. at 252; see also Guidelines for Pre-Trial Intervention in New Jersey, Pressler, Current N.J. Court Rules, Guideline 3(i) to R. 3:28 at 1064 (2010) (noting that such individuals "should ordinarily not be considered for enrollment in [the] PTI program except on joint application . . . [with] the prosecutor"). In such cases, an applicant is provided with the opportunity to present "any facts or materials[] demonstrating [his] amenability to the rehabilitative process, showing compelling reasons justifying . . . admission and establishing that a decision against enrollment would be arbitrary and unreasonable." Ibid. "[T]o establish compelling reasons for admission into PTI, [such] a defendant must demonstrate something extraordinary or unusual, something 'idiosyncratic,' in his or her background." Nwobu, supra, 139 N.J. at 252 (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)). "When . . . the prosecutor refuses to join affirmatively in the filing of an application or later refuses to consent to enrollment, such refusal should create a rebuttable presumption against enrollment." Pressler, supra, comment on Guideline 3(i) to R. 3:28 at 1066-67.

Defendant contends that the prosecutor's rejection of his "application [wa]s premised upon a series of mistaken assumptions," leading to the conclusion that he "intended to distribute the CDS that he possessed at the time of his arrest." He argues that since he and McAllister were arrested together, they intended to "share" the drugs, and that given his level of drug dependency, it was likely that he would use all or most of his share "in less than one week." He further contends that since he drove from Scranton to Essex County to purchase more than 150 bags of heroin, it was logical to assume that someone traveling such a distance "would purchase a greater quantity [of heroin] to reduce the number of trips in the near future."

Defendant, however, was indicted for the second-degree offense of possession with intent to distribute heroin within 500 fee of public property, and third-degree possession of heroin with intent to distribute. He never moved to dismiss those counts of the indictment on the grounds that the evidence adduced before the grand jury was insufficient to establish that he possessed the heroin with the intention to distribute it.

A judge reviewing the prosecutor's rejection is not permitted to resolve factual disputes raised by a defendant on appeal, particularly when the facts defendant asserts assail one of the essential elements of the crime for which he was indicted. In our view, permitting the judge to do so would fly in the face of longstanding precedent that was developed "with careful attention to the preservation of the traditional role of the prosecutor." State v. Wallace, 146 N.J. 576, 584-85 (1996). As the Court has noted, "the PTI process is not designed to assess the weight of the State's case. '[T]he appropriate administration of the program militates against basing enrollment upon the weight of the evidence of guilt.'" Nwobu, supra, 139 N.J. at 252 (quoting State v. Smith, 92 N.J. 143, 147 (1983)).

Defendant further argues that the prosecutor's rejection was based solely on the nature of his offense, and that pursuant to Baynes, supra, 148 N.J. at 445-48, and State v. Caliguiri, 158 N.J. 28, 43-44 (1999), such a categorical rejection was improper. While we recognize the precedent defendant cites, it is inapposite to the facts of this case.

In both Baynes and Caliguiri, the prosecutor admittedly had adopted a per se rule rejecting PTI applications from defendants charged with certain drug offenses. See Baynes, supra, 148 N.J. at 451 (holding prosecutor's per se rule rejecting applicants for possessory CDS offenses in a school zone was an abuse of discretion); see also Caliguiri, supra, 158 N.J. at 32 (holding that per se exclusion of defendants charged with violations of N.J.S.A. 2C:35-7 was an abuse of discretion). That simply is not the case here.

 
Rather, the prosecutor's rejection letter provided an "individualized" assessment of defendant's application by carefully considering all of the statutory factors. See State v. Watkins, 193 N.J. 507, 520 (2008). She "precisely state[d] h[er] findings and conclusions . . . ." N.J.S.A. 2C:43-12(f). In short, we find no basis to conclude that defendant "clearly and convincingly establish[ed] that the prosecutor's decision constitute[d] a patent and gross abuse of discretion." Watkins, supra, 193 N.J. at 520 (citations and quotations omitted). Affirmed.

The third count of the indictment erroneously indicated the substance was cocaine. Defendant concedes that the State notified him and the judge below of its intention to amend this apparent clerical error in the indictment.

Defendant also argues that denial of admission to someone who possesses CDS for personal use is prohibited by the Court's holding in State v. Baynes, 148 N.J. 434, 447 (1997). This argument is also based upon defendant's version of the facts and the strength of the State's case, not on the indictment returned by the grand jury. No further discussion is warranted. R. 2:11-3(e)(2).

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A-3986-08T4

April 29, 2010