STATE OF NEW JERSEY v. J.W.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6007-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.W.,

Defendant-Appellant.

_______________________________

November 17, 2011

Submitted: October 19, 2011 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-07-2264.

Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jennifer Fetterman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant J.W. appeals from an order of the Law Division denying his motion for admission into the Pretrial Intervention (PTI) Program over the county prosecutor's objection. We reverse and remand.

I.

On July 23, 2008, an Essex County Grand Jury returned a six-count indictment, 08-07-02264, against defendant, Larry Brown, and an unindicted co-conspirator unknown to the Grand Jury. Defendant was charged with third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five), and second-degree eluding, N.J.S.A. 2C:29-2b (count six).1

Defendant thereafter entered a plea of guilty to receipt of stolen property. In exchange for his plea, the State agreed to dismiss the remaining charge and to recommend a non-custodial sentence.

Defendant applied for admission into the Essex County PTI program. By letter of February 9, 2009, the Essex County Prosecutor's Office issued a letter denying defendant's application. The prosecutor's recitation of the events giving rise to the subject indictment against defendant and Brown was as follows:

According to the police incident report, on April 21, 2008, at approximately 7:50 p.m., Newark Police Officers were dispatched to . . . a carjacking in progress. When they arrived, the victim, Luis Gonzalez, reported that he had pulled his 1997 Jeep Wrangler out of the garage and parked it in the driveway with the keys in the ignition. While he was standing in the driveway, four black males approached him. Co-defendant, Larry Brown, asked him if he needed some help. When he refused the request for help, defendant Joshua Wilson jumped into the driver's seat of the Jeep. Mr. Gonzalez grabbed the defendant and tried to pull him out of the vehicle. Co-defendant, Larry Brown, pulled out a black revolver and pointed it at Mr. Gonzalez. The defendant then pulled out of the driveway and sped away. Co-defendant Larry Brown fled the scene on foot.

Officers put out a description of the stolen vehicle over police airways and the defendant was soon located by police. A Newark Police Helicopter assisted with the chase. The defendant ultimately exited the stolen vehicle in front of 395 S. 15th Street. The defendant and co-defendant, Larry Brown, fled from the vehicle on foot and were apprehended after a brief foot chase. The victim identified co-defendant Larry Brown as the individual who had pointed the gun at him. They were arrested without further incident.

[Emphasis added.]

The prosecutor found aggravating factors one, two, seven, ten, fourteen, and seventeen. N.J.S.A. 2C:43-12e(l),(2),(7),(10),(14), & (17). As to factor one, the nature of the offense, the prosecutor noted that defendant pled guilty to receiving stolen property and admitted he had "committed the theft of an automobile that had been carjacked at gunpoint." The prosecutor concluded there was a specific and general need to deter automobile theft, particularly where the automobile was taken "in the presence of its rightful owner by force or with the threat of violence." The prosecutor additionally found defendant presumptively ineligible for PTI due to the threat of violence against the victim, see Guideline 3(i) of R. 3:28, acknowledging that Brown carjacked the victim and threatened him with a handgun, but in essence, treating defendant as an accomplice based on the premise that defendant "drove away in the stolen vehicle."

The prosecutor also found the following facts of the case implicated aggravating factor two:

As outlined above, the defendant was involved in the theft of an automobile that was carjacked in his presence. The defendant drove a stolen car away from the scene after the co-defendant threatened the victim with a handgun. His behavior indicates that he acquiesced in the co-defendant's use of violence against the owner of the car, which gave him the opportunity to drive away. Even without considering the co-defendant's involvement, the State finds it to be reprehensible that the defendant committed his crime in the presence of the vehicle's owner. His actions alone caused a violent situation, as the victim fought to protect his property. It is evident that the defendant did not play a minor or cursory role in the offense; rather, he created a violent situation and then drove away with the stolen vehicle. These facts show that the defendant was a participant in a very serious, dangerous offense and militate against his admission for PTI.

[Emphasis added.]

The prosecutor found as aggravating factor seven, the needs and interests of the victim and society, that the victim's vehicle was stolen from him in his presence, and at gunpoint, which gave the victim and society a compelling interest in prosecuting such serious crimes.

In finding aggravating factor ten, that the crime was of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior, militating against defendant's admission into PTI, the prosecutor stated:

The present offense was violent. When the defendant jumped into the driver's seat of the stolen vehicle, the victim reacted and attempted to remove defendant from the car. This situation could have escalated and the victim could have been injured. Additionally, the co-defendant pointed a handgun at the victim, enabling the defendant to drive away. Certainly, the co-defendant could have killed Mr. Gonzalez.

[Emphasis added.]

In finding aggravating factor fourteen, that the crime was of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution, the prosecutor found the present offense was serious and defendant was presumptively ineligible for PTI, which was not overcome by the positive factors of defendant's age and educational attainments.

In finding aggravating factor seventeen, that the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program, the prosecutor emphasized that "auto theft and violent crimes are a source of fear and anxiety on the part of local residents," which must be vigorously prosecuted and deterred.

The prosecutor found mitigating factors three, eight, nine, twelve, thirteen, and sixteen to be relevant. N.J.S.A. 2C:43-12e(3),(8),(9),(12),(13), & (16). The prosecutor noted that defendant was twenty years old and a high school graduate (three), defendant had not exhibited a pattern of anti-social behavior (eight), defendant had no prior indictable convictions (nine), defendant had no history of violence (twelve), defendant was not involved with gangs or organized crime (thirteen), and defendant's participation in PTI would not adversely affect the prosecution of co-defendant Brown, who pled guilty to carjacking and possession of a weapon with an unlawful purpose (sixteen). The prosecutor concluded that the aggravating factors outweighed the mitigating factors and militated against defendant's admission into the PTI program.

By letter of March 5, 2009, defendant's attorney pointed out factual inaccuracies in the prosecutor's denial letter, including that the indictment did not reflect the factual allegation that defendant was "the actor who was present at the scene of the carjacking and who stole the vehicle from the victim." Accordingly, defense counsel urged that to the extent the aggravating factors that were relied upon to issue the rejection were based on defendant's participation in a carjacking for which he was not charged, he requested defendant's PTI application be re-evaluated based upon the correct information.

By letter of March 16, 2009, the prosecutor stood by her prior position that the enumerated aggravating factors outweighed the relevant enumerated mitigating factors, militating against defendant's enrollment in the PTI program. She stated:

I have considered the points raised in your recent correspondence. Be assured that the State's rejection letter clearly states that the defendant pleaded guilty to third degree receiving stolen property and that co-defendant admitted to carjacking the same vehicle at gunpoint. Moreover, the defendant admitted that he was in possession of the vehicle shortly after the violent incident occurred. It is the opinion of this Office that the fact that the stolen automobile had been taken from its owner at gunpoint increases the seriousness of defendant's offense. Furthermore, the defendant was identified as the driver of the carjacked vehicle in the police incident report and the State did not base its rejection on any assumptions.

[Emphasis added.]

Defendant then moved before the Law Division to obtain admission into PTI over the State's objection. During oral argument on April 6, 2009, the prosecutor acknowledged the error in her original rejection letter, explaining she had been under the mistaken impression that defendant was the one who had jumped in the car while co-defendant hijacked the victim. However, after reading the incident report carefully, she ascertained that defendant was never identified as one of the individuals at the scene of the carjacking, either present or the one who jumped into the driver's seat of the vehicle. Rather, defendant's sole involvement was that he was found in the stolen car with co-defendant about half an hour after the carjacking incident. Nonetheless, the State continued to defend its position that defendant was not a suitable candidate for PTI on the basis that he was a willing participant in a violent incident, because although he did not carjack the vehicle himself, he was a passenger in the stolen vehicle driven by the carjacker shortly after it had been taken from the owner.

Following supplemental briefs addressing the State's new position, the court issued a written opinion on May 4, 2009, finding the prosecutor's rejection of defendant's PTI application was not a patent and gross abuse of discretion. The court noted the significant inaccuracies in the prosecutor's initial rejection letter. Nonetheless, the court was satisfied the State appropriately considered as aggravating factors within its discretion for denying PTI that defendant's receipt of stolen property had been obtained during the course of a violent carjacking. See, e.g., State v. Kraft, 265 N.J. Super. 106, 116 (App. Div. 1993) (holding a prosecutor correctly based his refusal to divert the defendant into PTI based on the nature of the offense charged, third-degree burglary and fourth-degree taking, due to the seriousness of the offense).

On May 4, 2009, the court sentenced defendant in accordance with the negotiated plea on count five to two years probation, community service, and imposed the requisite fines and penalties. Count six, eluding was dismissed. Defendant appealed denial of his PTI application.

II.

On appeal, defendant asserts error by the court in affirming the prosecutor's rejection of defendant's admission into PTI, arguing the prosecutor's decision constituted an arbitrary, patent and gross abuse of discretion. Specifically, defendant submits the prosecutor wrongly ascribed to him offenses that he neither planned nor executed and its decision, in which the trial court acquiesced, was premised on irrelevant or inappropriate factors that applied to co-defendant Brown, not defendant. According to defendant, when these factors are removed, and his positive characteristics that were recognized by the prosecutor and court are considered, it is apparent he is a worthy and suitable candidate for the diversionary PTI program.

We consider defendant's arguments in light of the applicable law. The trial court's conclusion regarding the State's decision to reject a PTI application is a question of law. State v. Nwobu, 139 N.J. 236, 247 (1995). Therefore, our review is de novo, as "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

As we consider the trial court's decision, we remain mindful that a prosecutor's refusal to consent to the diversion of a particular defendant is a prosecutorial function to be afforded considerable deference. State v. Wallace, 146 N.J. 576, 582 (l996); State v. DeMarco, 107 N.J. 562, 566 (1987). The initial decision to accept or reject a defendant's PTI application lies within the scope of the prosecutor's discretion in selecting "whom to prosecute and whom to divert to an alternative program, such as PTI." Wallace, supra, 146 N.J. at 582 (citing State v. Leonardis (Leonardis II), 73 N.J. 360, 381 (1977)). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" Kraft, supra, 265 N.J. Super. at lll (citing State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)). See also DeMarco, supra, 107 N.J. at 566. "As a practical matter, our standard of review translates into a high burden for defendants." State v. Brooks, 175 N.J. 215, 225 (2002).

However, a prosecutor's discretion in reviewing a defendant's request for consideration in PTI is not "unbridled." Wallace, supra, 146 N.J. at 582. See also State v. Baynes, 148 N.J. 434, 451 (1997) (invalidating prosecutor's per se rule denying PTI to any defendant committing school-zone drug offense). Although severely limited, "[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 [PTI] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382; State v. Bender, 80 N.J. 84, 89-90 (1979).

In Bender, supra, the Court elaborated on the "patent and gross abuse of discretion" standard, stating:

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.

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

With these principles in mind, we review the Prosecutor's determination in light of defendant's arguments that the State considered irrelevant or inappropriate factors and improperly painted defendant with co-defendant's violent act when the only evidence was that he was a passenger in a vehicle that he knew or believed to have been stolen.

In assessing the nature of the offense described in factor one, and the facts of this case, factor two, we note certain defendants are subject to the "'presumption against [PTI] acceptance.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting Baynes, supra, 148 N.J. at 442). Specifically, Guideline 3 of Rule 3:28 identifies among others, violent criminals and first- and second-degree offenders whose crimes bear a presumption of incarceration; in other words, offenders who have "committed crimes that are, by their very nature, serious or heinous and with respect to which the benefits of diversion are presumptively unavailable." Watkins, supra, 193 N.J. at 523.

It is appropriate to reject an offender as a candidate for PTI only when "the Guidelines express a presumption of ineligibility[;]" otherwise, "[a]ny defendant charged with a crime is eligible for PTI." State v. Caliguiri, 158 N.J. 28, 36 (1999). The Prosecutor's initial denial letter concluded that defendant was "presumptively ineligible for PTI due to the threat of violence against the victim," expressly reflected in aggravating factors one and fourteen. However, it is clear that conclusion was based on the erroneous assumption that defendant drove the stolen vehicle from the scene immediately after co-defendant Brown "carjacked the victim and threatened him with a handgun." Similarly erroneous facts leading to the conclusion that defendant created a violent situation militating against his participation in PTI, as reflected in the balance of the aggravating factors found by the Prosecutor, were that the carjacking occurred in defendant's presence, defendant jumped into the driver's seat and there was a concern that the situation could have escalated and the victim could have been injured when he attempted to remove defendant from the car, defendant acquiesced in co-defendant's use of the violence against the owner of the car, and defendant "did not play a minor or cursory role in the offense."

As the Prosecutor conceded at oral argument before the trial court, defendant was not placed at the scene of the carjacking, was never identified as the driver, and was not charged with carjacking or any weapons offense. Defendant's sole involvement was that he was found in the stolen vehicle with co-defendant about thirty minutes after the carjacking. In his plea allocution, defendant testified he was "in the vehicle," not driving it, knowing or believing it to be stolen. No evidence was presented that defendant even knew how the vehicle had been stolen. Defendant's circumstances are inapposite to the defendant in Kraft, who himself was charged with the burglary of an apartment, a particularly serious offense worthy of "vigorous prosecution rather than of diversion" because it involves a person "unlawfully enter[ing] the houses of innocent victims and rummag[ing] through their belongings and steal[ing] the hard earned goods belonging to theses victims," and has a "significant potential for violence, which could easily have been realized if one of the victim's neighbors had interrupted the perpetrators in the middle of their crime." Supra, 265 N.J. Super. at 116-17.

When all the inaccuracies are removed from the prosecutor's denial letters of February 9 and March 16, 2009, defendant's offense of third-degree receipt of stolen property does not fall within the presumptively ineligible category of offenses. We do not minimize the offense. However, it does not constitute a "violent" and "dangerous" offense such that it should so strongly militate against defendant's admission for PTI in view of the considerable number of mitigating factors found by the prosecutor. As demonstrated by our review of the record, it is apparent the State's rejection of defendant into the diversionary program was based on a lopsided review of his application tainted by inaccurate information and constituted a patent and gross abuse of discretion.

Reversed and remanded.

1 Brown and the unindicted co-conspirator were charged with second-degree conspiracy to commit carjacking (count one); and Brown, individually, was also charged with first-degree carjacking, N.J.S.A. 2C:15-2 (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). Brown was charged along with defendant with third-degree receipt of stolen property in count five.