STATE OF NEW JERSEY v. J.H.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5476-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.H.P.,

Defendant-Appellant.

-

December 19, 2012

Argued October 23, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-09-1424.

Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief).

Ashlea D. Thomas, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Thomas, of counsel and on the brief).

PER CURIAM

Defendant J.H.P. appeals from the January 7, 2011 order of the Law Division affirming the prosecutor's denial of his application for admission into the pretrial intervention (PTI) program. We affirm.

I.

Defendant, then forty years old, hit, choked, and tried to suffocate his mother during an incident that stemmed from a toxic combination of substance abuse, depression, and family conflict. He then threatened his mother with a knife and forced her to consume an unknown quantity of Klonopin pills. Thereafter, he called the police and reported that his mother had taken pills to kill herself and that her injuries were due to a fall.

Defendant's mother sustained two broken ribs and required hospital treatment. When confronted by his brother at the hospital, defendant fled in his mother's car and took $600 from her purse. Defendant has serious mental health and substance abuse issues, but no prior criminal history. He is also highly educated with a graduate-level degree.

Defendant was indicted on the following charges: second-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count one); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count two); and two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (counts three and four).

Following his indictment, defendant applied for admission into the PTI program. On September 28, 2010, the criminal division manager rejected defendant's application, citing the violent nature of the offense and the extensive treatment required to address defendant's substance abuse and mental health issues as the reasons for the decision. The prosecutor also rejected defendant's application, citing the nature of the offense and facts of the case, N.J.S.A. 2C:43-12e(1) and (2); and the likelihood that defendant's criminal offense was related to a condition or situation that would not be conducive to change through participation in short-term supervisory treatment, N.J.S.A. 2C:43-12e(6).

Pursuant to Rule 3:28(h), defendant appealed the rejection of his application to the Law Division, arguing that the prosecutor abused his discretion when he concluded that the treatment and supervision defendant required to address his substance abuse and mental health issues are beyond the scope of the PTI program. On January 6, 2011, following argument, the court denied defendant's appeal, stating, "[d]efendant needs very intense supervision and treatment . . . . [B]ased upon the reports this [c]ourt has read, the defendant . . . should be under supervision for longer than the ordinary term of [p]retrial [i]ntervention."

After the court ruled on his PTI appeal, defendant pled guilty to one count of aggravated assault (third degree), pursuant to a negotiated plea agreement, which called for a sentence of five years non-custodial probation along with in-patient drug treatment and mental health counseling. The trial court sentenced defendant in accordance with the plea agreement. This appeal followed, as permitted by Rule 3:28(g).

Defendant argues that the prosecutor's rejection of his PTI application amounted to a patent and gross abuse of discretion in light of his advanced education and the fact he has no prior criminal history of arrests or convictions. He further claims the prosecutor failed to consider all relevant factors, and instead considered factors that were irrelevant or inappropriate. Finally, he contends the rejection of his PTI application constituted a clear error in judgment that subverted the goals of the PTI program.

II.

Eligibility for PTI is based primarily on "the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense." N.J.S.A. 2C:43-12(b). "Admission [into PTI] requires a positive recommendation from the PTI director and the consent of the prosecutor." State v. Negran, 178 N.J. 73, 80 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). In making a determination to admit, "a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)).

A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008). "In respect of the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Negran, supra, 178 N.J. at 82.

Accordingly, a court's scope of review of such a decision is "severely limited," and has been characterized as one of "'enhanced' or 'extra'" deference. Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)); see Nwobu, supra, 139 N.J. at 246. Therefore, "[i]n order to overturn 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 and citation omitted). "The question is not whether [the court] disagree[s] with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.

III.

Applying the above standards, we discern no abuse of discretion in the prosecutor's denial of defendant's application, much less one that is "patent and gross." Watkins, supra, 193 N.J. at 520. "A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Ibid. (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)).

Here, the record fully supports the prosecutor's denial of defendant's application based on a finding that defendant had failed to rebut the presumption of ineligibility due to the threatening nature of the offense. "[I]t is . . . well settled that a prosecutor's refusal to divert a particular defendant can, in appropriate circumstances, be based solely on the nature of the offense charged." State v. Kraft, 265 N.J. Super. 106, 115 (App. Div. 1993). On this point, the trial court noted, "the bottom line is that the defendant committed a very, very serious violent assault which is one of the factors that the State has relied upon to reject his application for [PTI]."

Like the trial court, we find no reason to disturb the prosecutor's decision that defendant's educational achievements and lack of prior criminal involvement did not rebut the presumption of ineligibility.

Defendant argues, unpersuasively, that the prosecutor abused his discretion by focusing on the seriousness of the crime as well as concluding that defendant's treatment needs exceeded the scope of the PTI program. The fact that it may be possible for defendant to successfully complete his treatment within three years, if all goes well, does not mandate approval of defendant's PTI application. We are satisfied the trial judge carefully considered each of the relevant issues in making his determination that defendant failed to meet his heavy burden to demonstrate that the prosecutor s decision was a clear and patent abuse of discretion.

A