STATE OF NEW JERSEY v. NELLIE RIOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3257-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NELLIE RIOS,

Defendant-Appellant.

________________________________

March 8, 2011

Submitted: December 6, 2010 Decided:

Before Judges Grall and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-04-0274.

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

TheodoreJ.Romankow,UnionCountyProsecutor,attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nellie Rios entered a conditional plea of guilty to one count of third-degree burglary, contrary to N.J.S.A. 2C:18-2, and now challenges the refusal of the Union County Prosecutor to admit her to the Pre-Trial Intervention Program (PTI). Because the decision of the prosecutor was not arbitrary, nor a patent and gross abuse of discretion, we affirm.

On December 28, 2007, at about 7:00 p.m., the victim and her three-year-old son entered their apartment in Elizabeth and found defendant hiding behind the couch. Defendant jumped up when she saw the victim, grabbed her, held onto her, and told her that she was sorry. The victim saw her laptop in defendant's plastic shopping bag. Defendant begged for forgiveness, only releasing the victim when the victim said she forgave defendant and was not going to do anything about the incident. Defendant left the apartment a few minutes later, but then knocked on the door. The victim would not allow her to reenter the apartment. The police arrested defendant a short time later at her own apartment. She was the wife of the former building superintendent.

Defendant sought admission into PTI, but her application was rejected by the PTI program in Union County. The program relied on Rule 3: 28 PTI Guideline 3(i) in rejecting defendant's application. The Notice of Rejection was dated June 4, 2008.

On June 10, 2008, the Union County Prosecutor joined in the PTI Program rejection. The prosecutor noted that defendant was forty-one-years old and a high school graduate with two prior arrests, but no reported convictions. The prosecutor considered the statutory criteria set forth in N.J.S.A. 2C:43-12(e), the PTI Guidelines contained in Rule 3:28, and all relevant facts and circumstances of defendant's case, including her submissions in support of PTI. The prosecutor noted that the PTI program was intended to permit the "least burdensome form of prosecution possible for defendants charged with 'victimless' offenses," but in this case, there clearly was a victim. See N.J.S.A. 2C:43-12a(3). Citing State v. Kraft, 265 N.J. Super. 106, 115 (App. Div. 1993), for the proposition that a prosecutor can refuse to divert a particular defendant based solely on the nature of the offense, the prosecutor refused to admit defendant into PTI, stating that her offense was one where "'the public interest would best be served by prosecuting this type of offense rather than diverting defendant into PTI,'" id. (approving rejection from PTI for third-degree burglary). The prosecutor noted that "[s]ociety needs to be protected from those who break into homes and steal personal belongings," and the existence of a strong public "need to deter others from committing similar crimes."

Defendant sought an order overruling the prosecutor's rejection and the matter was heard on July 29, 2008. The judge heard oral argument on the application and placed his decision on the record that date. He emphasized the difference between a street crime, such as theft from an automobile, and a burglary of a private home interrupted by the resident. The judge recognized that defendant did not have a weapon and did not harm anyone, but found the State had a "right to consider the difference" between a burglary of a private home and other thefts. The judge noted that defendant was required to prove by "clear and convincing evidence that the rejection was a patent and gross abuse of discretion." He found that defendant had not proven that the rejection was premised upon consideration of less than all of the relevant factors because the prosecutor noted defendant's lack of criminal history and recognized that she was remorseful. He also found that the prosecutor did not consider any "irrelevant or inappropriate factors" and the prosecutor's decision did not amount to an error in judgment. He found that any error in judgment was not clear, as defendant was required to prove. Finally, he found that the exercise of the prosecutor's discretion did not rise to the level of patent or gross abuse thereof. As a result, he concluded that he was not authorized to overrule the prosecutor's rejection of defendant's PTI application.

Defendant subsequently entered a guilty plea on August 11, 2008, admitting to the elements of the crime. She was sentenced on October 3, 2008, at which time the sentencing judge found aggravating factor nine1 in equipoise with mitigating factors seven and ten.2 As a consequence, he imposed an eighteen-month term of probation, with various fines, assessments, and conditions of probation. This appeal followed.

Defendant raises the following issue for our consideration:

POINT ONE 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.

Defendant urges that the Supreme Court in State v. Baynes, 148 N.J. 434, 445 (1997), condemned the use of per se rules that render categories of defendants ineligible for PTI. As a consequence, defendant urges that "[t]he prosecutor's exclusive focus on the nature of the offense by virtue of his office's per se rule constituted a patent and gross abuse of discretion and the trial court should have so determined."

If we reject her argument of a patent and gross abuse of discretion, she asserts that the "prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion." In such a case, she points out that under State v. Wallace, 146 N.J. 576, 583 (1996), we may remand the matter to the prosecutor where it will "serve a useful purpose." Defendant urges that the prosecutor failed to consider her individual characteristics and the "dire consequences to her of having a criminal conviction on her record." Because she could have been adequately treated within the PTI program, she urges that a remand to the prosecutor is appropriate.

Last, she contends that her rejection from PTI subverts the goals of the PTI program because the criminal conviction renders her employment future bleak.

The prosecutor responds that his decision is entitled to a high level of deference, citing State v. Nwobu, 139 N.J. 236, 246 (1995). He contends that a prosecutor's decision will only rarely be overturned and it is not appropriate in this case because defendant failed to clearly and convincingly satisfy the necessary criteria. The trial judge found no abuse of discretion, let alone a patent and gross abuse of discretion. Thus, we must be even more hesitant to overrule the prosecutorial determination.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on July 29, 2008. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See State v. Locurto, 157 N.J. 463, 471 (1999). In so affirming, we specifically note that the prosecutor did consider all relevant factors, including defendant's minimal prior record and the remorse she expressed to the victim, the police officers at the time of arrest, and to the court, and also note that Kraft, supra, 265 N.J. Super. at 115, was specifically discussed and approved in Baynes, supra, 148 N.J. at 446. Thus, the prosecutor did not abuse his discretion in rejecting defendant's application for PTI.

1 N.J.S.A. 2C:44-1a(9).

2 N.J.S.A. 2C:44-1b(7), (10).