STATE OF NEW JERSEY v. J.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6276-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.P.,

Defendant-Appellant.

_______________________________________

December 27, 2012

Submitted December 4, 2012 Decided

Before Judges Reisner and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-12-2246.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order entered by the Law Division on April 21, 2011, which upheld the denial of his application for admission to Pre-Trial Intervention (PTI). We affirm.

Defendant was charged with second-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); and third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(7) (count two). On December 2, 2010, defendant pled guilty to count one, which was amended to charge third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3.

At the plea hearing, defendant stated that on July 28, 2010, he was in Manalapan, had an encounter with a person identified as M.B., and took money from him. Defendant acknowledged that he had conspired with co-defendants Justin Basilone and Brian Pabian to "get that money" from M.B. Defendant entered his plea, pending consideration of his PTI application.

On January 26, 2011, the county prosecutor issued a memorandum denying defendant's application. The memorandum indicated that on July 28, 2010, a police officer from the Manalapan police department responded to a report of a robbery. The victim was M.B., who said that he had been standing outside of his home with Dennis Hernandez (Hernandez), when two vehicles pulled up: an Infiniti Q45 with two occupants, and a Chrysler 300 with three occupants.

Co-defendant Philip Maritato (Maritato) was the driver of the Chrysler, and defendant was seated in the passenger seat. A third passenger, who was wearing a ski mask, exited the car and began to strike his fist onto the palm of his other hand. The other occupants of the Chrysler exited the car and approached Hernandez. They shouted and cursed and said they would get him. Hernandez went to his back yard to hide and use his cell phone to call the police.

The men caught up with M.B. The man wearing the ski mask ripped off M.B.'s shirt and threw him to the ground. The men sat upon M.B.'s chest and punched him in the face. They went through his pockets, stole his money and fled to their cars. M.B. identified the men who assaulted him. He said they took "a little" less than $2,000 from him.

Another Manalapan police officer was investigating the robbery when he noticed defendant and Maritato walking on the sidewalk. Maritato was found in possession of a sum of money that appeared to be linked to the robbery. Maritato stated that he drove defendant and the other males to the place where the robbery was committed.1

The prosecutor's memo stated that defendant should not be admitted to PTI because the facts of the case indicated that defendant and the others planned and executed the crime, and the victim had sustained injuries to the face, arms and legs in the incident. The memo stated that the offense had been committed deliberately and with violence, and the victim was injured in the assault.

The memorandum also stated that defendant lacked the motivation to succeed in PTI. The memo noted that defendant had not appeared for two meetings regarding PTI admission, and defendant had some contact with the courts, including a charge in the Family Part and two motor vehicle charges. The memorandum concluded that the State had considered the positive factors in defendant's application, but found that the negative factors "significantly outweigh[ed] the positive," making defendant an "inappropriate candidate for PTI."

Defendant filed a motion in the trial court appealing the denial of his admission to PTI. The trial court considered the matter on April 21, 2011, and placed its decision on the record that day. The court determined that defendant had not clearly and convincingly established that the prosecutor's decision was a patent and gross abuse of discretion. The court entered an order dated April 21, 2011, rejecting defendant's appeal.

On May 6, 2011, the court sentenced defendant in accordance with the plea agreement to a two-year term of probation. The court ordered defendant to obtain a substance abuse evaluation within thirty days, participate in self-help recovery group meetings three to five times each week, submit to random urine monitoring, and maintain full-time employment. Appropriate fines and penalties also were imposed.

Defendant appeals and raises the following argument for our consideration:

THE DEFENDANT'S REJECTION FROM PTI CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION BECAUSE THE PROSECUTOR FAILED TO CONDUCT AN INDIVIDUALIZED EVALUATION OF DEFENDANT'S ROLE IN AN INCIDENT INVOLVING MULTIPLE PARTICIPANTS.

We have carefully considered the record and conclude that defendant's arguments are entirely without merit. We affirm the trial court's order substantially for the reasons stated by the trial court in the decision that it placed on the record on April 21, 2011. R. 2:11-3(e)(2). We add the following.

N.J.S.A. 2C:43-12 and Rule 3:28 with its accompanying guidelines set forth the "'purposes, goals, and considerations relevant to PTI.'" State v. Negran, 178 N.J. 73, 80 (2003) (quoting State v. Brooks, 175 N.J. 215, 223 (2002)). Diversion to PTI allows applicants "'opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant.'" Ibid. (quoting Brooks, supra, 175 N.J. at 223).

Admission to PTI "requires a positive recommendation from the PTI director and the consent of the prosecutor." Ibid. (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). "[C]ourts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Id. at 82 (citing Nwobu, supra, 139 N.J. at 246). To "overcome" the prosecutor's rejection of a PTI application, the applicant must clearly and convincingly show that the prosecutor's decision represents a patent and gross abuse of discretion. Ibid.

Defendant argues that the trial court should have reversed the denial of his application because the offense involved multiple participants, with varying degrees of culpability. He contends that the prosecutor failed to consider his "minimal role in the incident." Defendant insists that he did not participate in the assault, and he says there is no evidence that he was one of the plan's "architects." He contends that, because the prosecutor failed to consider these factors, the decision at issue represents a patent and gross abuse of discretion. We cannot agree with these arguments.

As the trial court found, the prosecutor properly considered the facts of this particular incident, as permitted by N.J.S.A. 2C:43-12(e)(2) and Guideline 3(i) to Rule 3:28. When considering a PTI application, the prosecutor is not required to establish beyond a reasonable doubt that a particular factor applies. State v. Maddocks, 80 N.J. 98, 107 (1979). Rather, the prosecutor need only show that his decision is based on a "reasonable belief, grounded in reliable information." Ibid.

Here, the prosecutor had reasonable grounds to believe that defendant's involvement in the incident was something other than "minimal." The victim stated that defendant was among those who were responsible for assaulting him and stealing his money. The victim referred to defendant by his first name and last initial. Maritato, who was the driver of the Chrysler, said that he drove defendant and the other males to the place where the robbery took place. Moreover, in his plea colloquy, defendant admitted that he removed the money from the victim, thereby refuting any claim that he remained in the car when the assault and robbery took place.

Defendant also argues that his prior involvement with the court system was minimal, and that the prosecutor erred by relying upon this factor to deny his application. Defendant notes that he has one juvenile adjudication and a driving record of motor vehicle violations. However, as the trial court determined, the prosecutor's consideration of defendant's prior record, even though minimal, was permitted by N.J.S.A. 2C:43-12(e), and not improper, illogical or unsupported by the facts.

Defendant additionally maintains that the prosecutor erred by considering his failure to appear for two scheduled PTI interviews as evidence of a lack of motivation and an indication he would not succeed in PTI. Defendant says that he was living with his mother and she failed to inform him of the first interview. He admits receiving notice of the second interview and states in his brief that it is "unclear why he did not attend that interview."

The trial court correctly determined, however, that the prosecutor's consideration of defendant's motivation was permitted by N.J.S.A. 2C:43-12(e)(3) and "logical[ly] and rationally based upon the facts." The court stated that it was "inconceivable" that defendant's mother received notice of the PTI interview and did not inform defendant. The court said that PTI

requires a defendant's willing participation and cooperation. In this case, defendant's failure to appear on not one, but two occasions logically supports the conclusion [that] he might not be sufficiently motivated to become fully engaged in the PTI program. His contention that his mother's purported mishandling of the mail to his home misses the point. And that it is his responsibility to be sufficiently motivated to get all that needs to be done accomplished, including attendance at interviews, as part of the PTI program. His apparent failure to do so with regard to his interviews and his attempt to [shift] responsibility to his mother supports the Prosecutor's lack of motivation finding. Most simply stated, if defendant was not sufficiently motivated to ensure that he appeared for his interviews there is no reason to conclude he . . . is motivated to participate and succeed in the PTI program itself.

We are therefore satisfied that the trial court correctly determined that defendant failed to clearly and convincingly show that the prosecutor's decision denying his admission to PTI was a patent and gross abuse of discretion.

Affirmed.

1 Maritato referred to defendant by his first name and last initial.