STATE OF NEW JERSEY v. TERRENCE A. JACKSON

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5815-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRENCE A. JACKSON,

Defendant-Appellant.

________________________________________________________________

October 29, 2010

 

Submitted October 19, 2010 - Decided

 

Before Judges Payne, Baxter and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-02-0481.

 

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

 

LuisA. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Terrence A. Jackson appeals from his January 23, 2009 conviction on a charge of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3), for which the judge sentenced him to a one-year term of non-custodial probation. We reject defendant's contention that the prosecutor's rejection of his request for admission to the Pretrial Intervention Program (PTI) constituted a patent and gross abuse of discretion and that the judge erred by refusing to override the prosecutor's adverse decision. We likewise reject defendant's claim that his probationary sentence was excessive. We affirm.

I.

On September 7, 2007, Officer Daniel Newman of the Asbury Park Police Department was on duty at the Asbury Park train station when an unknown male approached him stating that a man on the train platform, later identified as defendant, was trying to throw a woman onto the tracks in front of an approaching train. As Newman got closer to the platform, he could hear observers yelling at him to hurry up and he was also able to hear a woman screaming. As Newman looked ahead, he was able to observe defendant holding an unknown female by the arms while pulling her to the edge of the platform.

At that point, Newman, who was in plain clothes, grabbed defendant from behind and yelled in a loud voice, "police." Although defendant released his grasp of the female, he ignored Newman's command to lie down on the ground. In fact, defendant attempted to grab Newman and, in doing so, scratched the officer's arm. As Newman continued his attempt to gain control of defendant and handcuff him, defendant continued to struggle, stating, "don't be a hero." When advised by Newman that he was under arrest, defendant again pulled away from the officer's grip. Even when uniformed officers arrived on the scene, defendant continued to disobey the officers' command that he "get on the ground." When the officers were finally able to pull defendant to the ground, defendant put his arms under his stomach in an attempt to prevent them from applying the handcuffs. Defendant was charged with resisting arrest, aggravated assault and possession of a schedule IV controlled dangerous substance, namely modafinil.

Defendant thereafter filed a timely application for diversion into the PTI program. The PTI program director recommended that defendant be admitted; however, on July 16, 2008, the prosecutor rejected defendant from PTI, citing three reasons:

1. [N.J.S.A.] 2C:43-12(e)(2). The facts of the case. The facts . . . show that . . . defendant assaulted a police officer and resisted arrest. Several officers were called to the scene and needed to subdue the defendant who was uncooperative and unruly. At the police station the defendant continued to be uncooperative with the officers. Officer Newman required subsequent medical care as a result of the defendant's act.

 

Guideline 3(i) states that if the crime was committed with violence or threat of violence then the defendant's application should be rejected.

 

2. [N.J.S.A.] 2C:43-12(e)(4). The desire of the complainant or victim to forego prosecution. Although the PTI investigator has not considered the victim's comments, Patrolman Newman is opposed to the defendant's entry into PTI [and] states that he was injured as a result of this offense committed by the defendant. [Patrolman Newman, t]he victim in this case, suffered a crushed spine as a result and needed two rods and six screws inserted into his back. His back was fused together after a four hour procedure. . . .

 

3. [N.J.S.A.] 2C:43-12(e)(10). Whether 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. The victim in this case suffered physical, emotional and financial injury as a result of the defendant's actions.

 

In her rejection letter, the assistant prosecutor noted she had considered the positive factors in defendant's PTI application, which she described as his education, military service, employment history, lack of any prior criminal record and a history of depression. She wrote:

He obtained his Bachelor of Art[s] degree. He served in the Army from 1984 through 1985 and states he obtained the rank of 2nd Lieutenant. He states he obtained an honorable discharge . . . .

 

For the past three weeks he has been employed as a limo driver in Philadelphia. Previously he was self-employed as a language tutor in English and Spanish. He states he suffers from depression and is currently under the care of a doctor and is prescribed Wellbrutin. He denies using any illegal substances and has never been treated for substance abuse.

 

Nonetheless, the prosecutor concluded that "the negative factors significantly outweigh the positive," thereby making defendant "an inappropriate candidate for PTI."

On October 31, 2008, the Law Division heard argument on defendant's appeal from the prosecutor's rejection of defendant's PTI application. The court held that: the prosecutor considered all relevant factors; defendant failed to present compelling factors to overcome the presumption against PTI admission, which was applicable because defendant had deliberately committed the offense with violence; defendant had caused injury to Officer Newman; and even if the officer's medical record later showed that his injuries were not caused by defendant's conduct this would not require the prosecutor to admit defendant to PTI because defendant had, without dispute, acted violently when he resisted arrest.

Later that day, defendant entered a negotiated plea of guilty to third-degree resisting arrest. Pursuant to the plea agreement, the prosecutor agreed to recommend non-custodial probation and promised to provide the officer's medical records prior to sentencing, emphasizing that defendant could re-file the PTI application if the medical records raised a significant question as to causation.

The record reflects that on January 21, 2009, the prosecutor sent Officer Newman's seventy-one page medical record to defendant. The record does not establish whether the records were hand-delivered or mailed.

At the time of sentencing on January 23, 2009, neither side referred to Newman's medical records. In particular, defendant did not state that the medical records had not been provided, nor did he make any argument concerning a lack of a causal connection between the events of September 7, 2007 and Newman's injuries. Instead, defense counsel acknowledged the accuracy of the pre-sentence report and asked the court to sentence defendant in accordance with the plea agreement. As we have already noted, in his plea agreement defendant had reserved the right to file a motion for reconsideration of the court's October 31, 2008 order if Newman's medical records did not establish causation. Defendant never filed any such motion.

On appeal, defendant raises the following claims:

I. THE MONMOUTH COUNTY PROSECUTOR'S OFFICE'S OBJECTION TO PTI DIVERSION WAS A PATENT AND GROSS ABUSE OF DISCRETION.

 

II. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

 

 

II.

As we review the trial court's decision overturning the prosecutor's denial of PTI, we remain mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Absent evidence to the contrary, it is presumed that in considering a defendant's PTI application, the prosecutor considered all relevant factors. State v. Baynes, 148 N.J. 434, 444 (1997).

Once a prosecutor refuses to consent to the diversion of a particular defendant, the prosecutor's decision is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). As a result, the scope of a court's review of a prosecutor's decision to reject a defendant's PTI application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979). "[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 [a PTI Program] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382. In Bender, the Court elaborated on the patent and gross abuse of discretion standard:

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.

 

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

With these principles in mind, we review the judge's refusal to overturn the prosecutor's rejection of defendant from PTI.

Several statutory factors bear upon a prosecutor's consideration of a defendant's PTI application, including: N.J.S.A. 2C:43-12(e)(2), "[t]he facts of the case"; N.J.S.A. 2C:43-12(e)(4), "[t]he desire of the complainant or victim to forego prosecution"; and N.J.S.A. 2C:43-12(e)(10), "[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."

Moreover, the Guidelines for operation of the PTI program, which were initially adopted and approved by the Supreme Court in 1979, specifically provide: whenever a defendant is charged with a crime that was "deliberately committed with violence or threat of violence against another person, . . . the defendant's application should generally be rejected." Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i)(3) at 1082 (2011). Notably, Guideline 3(i)(3) does not require that a defendant deliberately inflicted the injuries, so long as his violent conduct was a deliberate, rather than a reckless, act.

In Point I, defendant maintains the judge erred when he deferred to the prosecutor's rejection of his PTI application because the prosecutor's decision constituted a patent and gross abuse of discretion. In particular, he argues that the prosecutor failed to properly weigh all of the positive aspects of his character and background and that the July 16, 2008 rejection letter was so cursory that it was impossible to determine whether the prosecutor in fact considered all relevant factors. He also maintains that the prosecutor's rejection of his PTI application should be set aside because the prosecutor never explained why the PTI program director's favorable response to his application should be rejected. Last, defendant maintains that he inflicted injuries on Officer Newman recklessly, not deliberately, and therefore Guideline 3(i)(3) does not apply, as the Guideline creates a presumptive ineligibility for PTI only where the conduct is "deliberate."

Defendant's contentions are without merit. Contrary to defendant's assertions, the prosecutor's July 16, 2008 rejection letter carefully listed each of the positive factors. As we have already noted, she listed seven specific factors, including, in part, defendant's education, military service and job experience. Thus, contrary to defendant's arguments, the prosecutor expressly considered each of the factors that would support defendant's application. Defendant's arguments fail to overcome the presumption established by Baynes, supra, 148 N.J. at 444, that the prosecutor considered all relevant factors.

We also reject defendant's contention that the prosecutor's decision was a patent and gross abuse of discretion because the prosecutor never explained her reasons for rejecting the PTI program director's favorable recommendation. We note that defendant has cited no authority supporting such a supposed obligation on the part of a prosecutor. Indeed, we have held that a prosecutor "may reject [an] application without [any] input from the program director" at all. State v. Rosario, 237 N.J. Super. 63, 67 (App. Div. 1989), certif. denied, 122 N.J. 139 (1990). Moreover, a prosecutor's decision "overrides any contrary decision by the program director." Id. at 66. Thus, in light of Rosario, we reject defendant's argument that the prosecutor's burden to explain a PTI rejection is somehow enhanced whenever the program director has reached a contrary recommendation. We emphasize that the program director's input is just that, a recommendation, and it has no binding effect on the ultimate decision to be made by the prosecutor.

Last, we reject defendant's argument that because the injuries sustained by Officer Newman resulted only from defendant's reckless infliction of injury, neither Guideline 3(i)(3) or N.J.S.A. 2C:43-12(e)(10) was applicable. First, we note the statute does not require that the injuries be deliberately inflicted. Instead, it merely specifies that the crime "is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior." Nor does the language of Guideline 3(i)(3) support defendant's position, as the Guideline merely requires a showing that the crime itself was deliberately committed "with violence or a threat of violence." Defendant's argument incorrectly confuses deliberate commission of a violent offense, here resisting arrest, with deliberate infliction of injury. The Guideline addresses the former, not the latter. Here, nothing in the record suggests that defendant's actions in resisting arrest were anything other than deliberately committed with violence.

The judge properly concluded defendant had not established that the prosecutor's rejection of his application constituted the "patent and gross abuse of discretion" that is required by Leonardis II, supra. We thus reject the claims defendant advances in Point I.

III.

In Point II, defendant maintains that the probationary sentence he received was an excessive sentence in light of his lack of any prior convictions. He maintains that the judge should have imposed merely a requirement of "community service or community supervision" without placing him on probation. Defendant's argument is meritless. A period of probation fixed by the court may not be "less than 1 year nor more than 5 years." N.J.S.A. 2C:45-2(a). Obviously, the one-year term of non-custodial probation the judge imposed was at the very bottom of that range. Nothing defendant has presented convinces us that failure to grant "community supervision" or "community service" without a term of probation represented an abuse of the extremely broad sentencing discretion afforded a judge by State v. Roth, 95 N.J. 334, 364-65 (1984). We thus reject defendant's claim in Point II that the sentence imposed was manifestly excessive.

Affirmed.