STATE OF NEW JERSEY v. MICHAEL LAZARSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5129-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL LAZARSKI,

Defendant-Appellant.

________________________________

December 22, 2011

 

Submitted November 28, 2011 - Decided

Before Judges Parrillo and Grall.

On appeal from the Superior Court of New Jersey,

Law Division, Ocean County, Indictment Nos. 09-08-1401 and 09-08-1547.

Joseph E. Krakora, Public Defender, attorney for

appellant (Jay L. Wilensky, Assistant Deputy Public

Defender, of counsel and on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Lazarski appeals from the February 8, 2010 order of the Law Division denying his motion to be admitted to the Pretrial Intervention (PTI) program over the objection of the Ocean County Prosecutor. We affirm.

The facts relevant to the issue on appeal are as follows. On November 7, 2008, while conducting an identity theft investigation, law enforcement officers seized a quantity of marijuana, a marijuana grinder, a multi-colored glass bong, a scale, and packaging material from the defendant's residence. The officers also observed two marijuana grow stations. The marijuana was later sent to the lab where it tested positive for marijuana and weighed a total of 148.8 grams.

While there, the police spoke with the twenty-two year old defendant, who admitted to using his former roommate's pedigree information to obtain four credit cards without his permission or knowledge, for which he charged a total of approximately $20,000. After being informed of his Miranda1 rights, defendant advised the officers that he was attempting to pay for the credit cards, but was experiencing financial difficulties. He refused to explain why the credit cards were under his former roommate's name. Defendant was charged with identity theft,2 fraud, possession of a controlled dangerous substance (CDS), possession of drug paraphernalia, and drug distribution.

While these charges were pending, on May 26, 2009, defendant entered the Boscov's store at the Ocean County Mall, picked up a Blu-Ray video DVD player valued at $399.99 and walked out of the store without paying for it. He later explained, during an interview with Ocean County Criminal Case Management, that "I walked into Boscov's and saw a DVD player. It was available so I took it [and] walked out the door."

As a result of these incidents, on August 5, 2009, defendant was indicted in two counts for third-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11), and fourth-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(3). Several weeks later, on August 20, 2009, defendant was separately indicted in a single count with fourth-degree shoplifting, N.J.S.A. 2C:20-11.

Defendant applied for admission into the PTI program and on October 22, 2009, the Probation Department recommended his admission. However, by letter of November 5, 2009, the prosecutor denied defendant's application based on considerations set forth in N.J.S.A. 2C:43-12e(1), (2), (8), (14) and (17), reasoning:

Getting charged with the first case should have deterred the defendant from further criminal activity, but it did not. Additionally, these crimes appear to be part of [a] continuing pattern of anti-social behavior. According to the PTI Director's report, the defendant smoked marijuana "socially" from the time he was seventeen years old until November, 2008. Moreover, the defendant has twenty-three motor vehicle violations dating back to 2003. . . .

 

. . . .

 

In evaluating this matter, this office gave positive weight to the following: the defendant's young age (22 years old); no criminal or disorderly persons convictions; and the fact that no presumptions against PTI apply. These positive factors, however, are outweighed by the factors against admission.

Defendant appealed his rejection from the PTI program to the Law Division. Following argument, the judge denied the appeal, concluding that the prosecutor's letter "is sufficiently detailed and properly based on all relevant and appropriate factors."

On appeal, defendant argues:

THE PROSECUTOR'S REJECTION OF THE DEFENDANT'S APPLICATION FOR PRETRIAL INTERVENTION, CONTRARY TO THE PROGRAM DIRECTOR'S RECOMMENDATION, CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION, NECESSITATING REVERSAL OR REMAND.

 

We have considered this argument in light of the record and the applicable legal precedents and have found it to be unpersuasive.

Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). Admission to PTI is governed, in general, by both statute, N.J.S.A. 2C:43-12, and court rule. R. 3:28; see Guidelines For Operation of Pretrial Intervention in New Jersey, Pressler and Verniero, Current N.J. Court Rules, comments on R. 3:28 (2012). The scope of judicial review of a decision to reject a PTI application is "'severely limited[,]'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), and 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) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

The standard to be applied by the courts in reviewing PTI decisions has been referred to as "'enhanced'" or "'extra'" deference. State v. Baynes, 148 N.J. 434, 443 (1997) (quoting Nwobu, supra, 139 N.J. Super. at 246). Moreover, the burden on any defendant who seeks to overturn the denial of a PTI application is particularly weighty. As our Supreme Court has held, a defendant seeking to overcome rejection from PTI must prove by clear and convincing evidence that the decision to reject his or her application was a "'patent and gross abuse of

. . . discretion.'" Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246); see State v. Brooks, 175 N.J. 215, 225 (2002).

In applying this test, the Supreme Court has noted that if a rejected defendant can prove that the decision "(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[,]" then an abuse of discretion would "[o]rdinarily . . . be manifest

. . . ." State v. Bender, 80 N.J. 84, 93 (1979). However, in order to raise that presumption to the level of a "patent and gross" abuse of discretion, the defendant must also prove that his or her rejection from PTI will "clearly subvert the goals" of the PTI program. Ibid. Similarly, our Supreme Court has held that it is appropriate to reverse a decision rejecting PTI that "is contrary to the predominant views of others responsible for the administration of criminal justice" such that it is "clearly unreasonable so as to shock the judicial conscience" or that it "could not have reasonably been made upon a weighing of the relevant factors." Nwobu, supra, 139 N.J. at 253-54 (internal quotations omitted).

G

overned by this standard, defendant's PTI rejection was not a patent or gross abuse of discretion. Indeed, the record demonstrates that both the prosecutor and motion judge carefully analyzed and evaluated all facets of defendant's PTI application as well as his individual circumstances. Consideration was given to his relative youth, lack of criminal or disorderly persons convictions and other positive aspects of his background. However, these factors were found to be outweighed by the very nature of the charged offenses the $20,000 in fraudulent credit card charges, the substantial amount of drugs and drug paraphernalia found in defendant's residence, the shoplifting of a $400 Blu-Ray DVD player during the pendency of the identity theft and drug charges, and the twenty-three motor vehicle violations amassed by defendant while only twenty-two years of age. This history not only gives rise to the need for general and specific deterrence, as recognized by the motion judge, but evinces "a continuing pattern of anti-social behavior[,]" justifying rejection of defendant's PTI application. N.J.S.A. 2C:43-12e(8). Accordingly, we discern no error in the motion judge's conclusions and detect no "patent and gross abuse of discretion" in the decision of the prosecutor to reject defendant from the PTI program.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The identity theft charges were subsequently dismissed because neither the credit card companies nor the victim wished to pursue the matter.