STATE OF NEW JERSEY v. VANESSA C. PONDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2294-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VANESSA C. PONDER,

Defendant-Appellant.

____________________________________

November 22, 2011

Submitted November 1, 2011 - Decided

Before Judges Simonelli and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-04-0320.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Vanessa Ponder appeals from the June 22, 2010 order denying her application for admission to the Pre-Trial Intervention (PTI) program. We affirm.

The record reveals that on February 28, 2010, at approximately 3:00 a.m., defendant, then twenty years old, became involved in a dispute with another patron of a fast-food restaurant over a food order. When the other patron left the restaurant, defendant followed her, took out a box cutter, and made two deep lacerations in the patron's left cheek. Thereafter, the patron was taken to the hospital, and defendant was arrested and charged with one count of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2).

On April 16, 2010, defendant waived presentation of the matter to a grand jury and entered a guilty plea to the accusation. In return for the plea, the State agreed to recommend a sentence of probation and to permit defendant to apply to the PTI program out of time. On May 21, 2010, the PTI director rejected defendant's application, adopting the recommendation of the PTI probation officer, who stated:

[Defendant] strikes the [PTI probation officer] as a very bright and relatively well-read individual, with issues involving her alcohol abuse and depression which she does appear to be attempting to actively address.

Unfortunately, that said, [defendant's] involvement here appears to be a clear continuation of her juvenile involvement, which included more than one act of violent behavior.

Further, the present pending matter reflects an incident of extreme violence utilizing a weapon which resulted in serious injury to the victim, and could easily have resulted in a much worse outcome.

In rejecting defendant's application, the PTI director found that the offense was beyond the scope of PTI, defendant's attitude was not amenable to change through counseling, her behavior pattern was too well-established, and the offense was deliberately and violently committed against another person. The Hudson County Prosecutor concurred with the recommendation. Defendant appealed to the trial judge, who affirmed the decision of the prosecutor. Immediately after denying the motion, the trial judge sentenced defendant to two years probation and imposed the appropriate fines and penalties. This appeal followed.

On appeal, defendant contends:

THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO PTI IS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION, WHICH MUST BE CORRECTED BY THIS COURT.

We have considered defendant's arguments in light of the record and the applicable law, and we are satisfied they are without sufficient merit to warrant an extended discussion. R. 2:11-3(e)(2). We add only the following comments.

"The primary purpose of [PTI] is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system." State v. Watkins, 193 N.J. 507, 513 (2008). PTI, an alternative to criminal prosecution, provides supervisory treatment in lieu of criminal sentencing for defendants whose criminal activity can be deterred through such supervisory treatment. Id. at 517-18. PTI is regulated by N.J.S.A. 2C:43-12 and Rule 3:28. To effectuate the purpose of PTI, "[e]ligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change . . . ." Watkins, supra, 193 N.J. at 513.

Nonetheless, N.J.S.A. 2C:43-12 and Rule 3:28 recognize that not all defendants are appropriate candidates. Ibid. "Defendants who have committed certain crimes are viewed as problematic from a rehabilitation perspective." Id. at 519. If the crime was "deliberately committed with violence or threat of violence against another person . . . the defendant's application should generally be rejected." R. 3:28, Guideline 3(i). Thus, this Guideline creates a "presumption against acceptance" into PTI for defendants whose crimes fall into the enumerated categories. State v. Baynes, 148 N.J. 434, 442 (1997). However, this presumption may be overcome if a defendant establishes "compelling reasons" for admission. State v. Nwobu, 139 N.J. 236, 252 (1995).

Diversion of candidates into PTI is a prosecutorial function and the prosecutor is endowed with great discretion in deciding whether to prosecute or divert defendants. State v. Wallace, 146 N.J. 576, 582 (1996). Consequently, judicial review of a decision to reject a PTI application is severely limited. Nwobu, supra, 139 N.J. at 246. Interference in that decision by the courts is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Leonardis, 73 N.J. 360, 384 (1977)).

In order to successfully challenge a prosecutor's rejection, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." Watkins, supra, 193 N.J. at 520 (internal quotation marks omitted). This is a heavy burden for a defendant to fulfill. State v. Mosner, 407 N.J. 40, 55 (App. Div. 2009) (citations omitted). Our Supreme Court has defined the test for a patent and gross abuse of discretion:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon 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 [PTI].

[State v. Bender, 80 N.J. 84, 93 (1979)

(citations omitted).]

We are satisfied that the prosecutor's rejection of defendant's PTI application did not constitute a patent and gross abuse of discretion. Defendant, who had a history of violence as a juvenile, committed a deliberate act of senseless violence, and has shown no compelling reason to overcome the presumption against PTI admission.

Additionally, we are satisfied that the prosecutor considered all factors set forth in N.J.S.A. 2C:43-12 and Rule 3:28. He also properly considered defendant's juvenile record. State v. Brooks, 175 N.J. 215, 227 (2002). Consequently, we conclude based upon the record before us that the prosecutor's rejection of defendant's PTI application was consistent with the statutory requirements and the PTI Guidelines, and did not constitute an abuse of discretion. See State v. Hoffman, 399 N.J. Super. 207, 217 (App. Div. 2008).