STATE OF NEW JERSEY v. ZACHARY C. GEHL

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5733-09T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ZACHARY C. GEHL,

Defendant-Respondent.

______________________________________________________

December 28, 2010

Submitted December 14, 2010 - Decided

Before Judges Graves and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-04-0200.

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for appellant (Daryl A. Williams, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

The State of New Jersey (the State) appeals from the July 13, 2010 order of the Law Division that granted defendant Zachary Gehl's appeal of his rejection from the PreTrial Intervention Program (PTI) by the Somerset County Prosecutor. We reverse.

On February 4, 2010, defendant, who was eighteen-years old, and three juvenile co-defendants entered a home in Bernards Township. Their purpose was to retrieve an iPod owned by one of the juveniles, and taken by the homeowner's son as collateral on an alleged debt. Defendant and his cohorts entered the house through an unlocked sliding glass door. Once inside, defendant and one of the juveniles used a knife to pry open a locked metal cabinet that contained Adderall, a drug prescribed for the homeowner's son. After taking the Adderall, defendant and the juveniles fled. Defendant subsequently admitted his involvement to the police.

The Somerset County grand jury charged defendant with third-degree burglary, N.J.S.A. 2C:18-2, and third-degree theft, N.J.S.A. 2C:20-3. Defendant applied for admission to PTI and the program director recommended admission. In a letter dated May 5, 2010, however, the prosecutor objected. Recounting the facts of the case, and citing Rule 3:28, guideline 3, and N.J.S.A. 2C:43-12(e)(1), (2), (7) and (10), the prosecutor concluded that rejection was appropriate "based on the nature of the offense . . . the threat of violence involved in the commission of defendant's crime and the needs and interests of the victim and society." Defendant appealed the rejection.

After considering oral argument, the Law Division judge granted defendant's motion. In a short written opinion that accompanied the order, the judge first noted that defendant was rejected by the prosecutor "before he was even interviewed by the [PTI] staff." The judge found this "alarming . . . as this preemptive rejection was made without all the information available and it would be impossible to comprehensively evaluate all [the statutory factors] prior to an interview." The judge also found there was "no proof" that the prosecutor had reviewed "all [the] statutory factors." The judge concluded:

As a result of the patent failure to review all [statutory] factors and rest [its] decision on the nature of the offense only, this Court finds that defendant's denial was a patent and gross abuse of [the prosecutor's] discretion.

The judge granted the motion and this appeal ensued.

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). A defendant can demonstrate an abuse of prosecutorial discretion "if [he] can show that a . . . 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). But in order to succeed, a defendant must show more.

To overturn the prosecutor's denial of his admission, a defendant must "clearly and convincingly establish that the prosecutor's refusal . . . was based on a patent and gross abuse of his discretion . . . ." Kraft, supra, 265 N.J. Super. at 112. (citations and quotations omitted) (emphasis omitted). "[A]n abuse of discretion . . . rise[s] to the level of 'patent and gross' . . . [whenever it] clearly subvert[s] the goals underlying [PTI]." Bender, supra, 80 N.J. at 93. We apply these principles in the context of this case.

Initially, we fail to discern how the judge reached the factual determination that the prosecutor rejected defendant's application before the PTI staff interviewed him. Defendant argues in his brief that we are bound by this factual finding. However, we are required to defer only if the factual finding was reasonably reached on sufficient, credible evidence in the record below. State v. Locurto, 157 N.J. 463, 470-71 (1999).

The judge did not explain how he reached this conclusion. The appellate record reflects that the program director recommended defendant's admission on April 27, 2010. The prosecutor's letter of rejection was dated May 5, 2010. Thus, we fail to see how the rejection was "preemptive" and "made without all the information available."

In rejecting any applicant for admission to PTI, the prosecutor must provide "a clear statement of reasons for the denial." Negran, supra, 178 N.J. at 82 (citing N.J.S.A. 2C:43-12(f)). In his rejection notice in this case, the prosecutor specifically cited four of the seventeen statutory factors set forth in N.J.S.A. 2C:43-12(e): "[t]he nature of the offense"; "[t]he facts of the case"; "[t]he needs and interests of the victim and society"; and "[w]hether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior." N.J.S.A. 2C:43-12(e) (1), (2), (7), and (10). In his brief in opposition to defendant's motion, and at oral argument, the prosecutor advanced another factor, N.J.S.A. 2C:43-12(e)(14) ("Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution[.]"). See State v. Hoffman, 399 N.J. Super. 207, 215 (App. Div. 2008) (noting "the prosecutor's comments during oral argument" demonstrated consideration of relevant factors in denying admission).

Despite this clear enunciation of several of the statutory factors, the judge determined there was "no proof" that the prosecutor considered "all [the] statutory factors." While we might agree that the prosecutor's written statement of reasons for rejection was terse, we have acknowledged that "[g]enerally, 'it is presumed that the prosecutor considered all relevant factors before rendering a [PTI] decision.'" Ibid. (quoting Dalglish, supra, 86 N.J. at 509). The omission of an explicit reference to all factors does not necessarily mean they were not considered. Hoffman, supra, 399 N.J. Super. at 215.

Defendant argues in his brief that the judge reached the correct legal conclusion that the prosecutor had "use[d] . . . a per se rule against PTI admission based solely on the name of the offense charged," i.e., burglary. See State v. Caliguiri, 158 N.J. 28, 43-44 (1999) (rejecting any per se exclusion of certain offenses from participation in PTI). Perhaps this was the judge's implicit conclusion when he determined the prosecutor essentially considered only one statutory factor -- the nature of the offense.

However, there is no support in the record for the conclusion that the prosecutor had adopted a per se rule rejecting from participation anyone charged with burglary. And the judge's determination that the prosecutor relied upon only one statutory factor is clearly belied by the record.

In any event, based upon the facts of the case, we cannot agree that the prosecutor's rejection of defendant's participation in PTI was a patent and gross abuse of the broad discretion accorded to him. Although only a few months older than his cohorts, defendant was in the company of three classmates who were juveniles. Together they burglarized a residence and stole a controlled dangerous substance prescribed for the homeowner's son. In our view, each of the statutory factors cited by the prosecutor as reasons to reject defendant's application was appropriately supported by the record. 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." State v. Watkins, 193 N.J. 507, 520 (2008) (citations and quotations omitted).

R