STATE OF NEW JERSEY v. KYLE A. HICKMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0152-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KYLE A. HICKMAN,

Defendant-Appellant.

_______________________________

August 2, 2013

Submitted July 9, 2013 Decided

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey,

Law Division, Salem County, Indictment No.

12-01-0012.

Joseph E. Krakora, Public Defender, attorney

for appellant (Alyssa Aiello, Assistant

Deputy Public Defender, of counsel and on

the brief).

John T. Lenahan, Salem County Prosecutor,

attorney for respondent (Lisa M. Riether,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Kyle Hickman was indicted on third-degree charges of aggravated assault on a police officer and resisting arrest. He appeals from denial of his application for enrollment in the Pretrial Intervention Program (PTI), pursuant to N.J.S.A. 2C:43-12 to -14 and Rule 3:28. We affirm.

On October 28, 2011, at approximately 11:00 p.m., a Penns Grove police officer patrolling in his vehicle saw defendant in the middle of the street yelling obscenities in the presence of other juveniles. As the officer approached and stopped his vehicle, defendant challenged him, saying, "Get out of the patrol car, you pussy. I ain't scared of you." The officer believed that defendant was intoxicated because of his slurred speech and erratic behavior. As the officer stepped out of his vehicle, defendant stepped toward him and took a boxer's stance with clenched fists. The officer announced that he was placing defendant under arrest. When the officer moved closer, defendant punched him in the face.

The blow caused the officer's face to swell and his contact lens to embed in his eye. The officer partially subdued defendant in a headlock. Defendant continued to fight and resist by flailing his arms and legs. With the help of another officer, defendant was handcuffed and restrained.

A Salem County grand jury returned a two-count indictment against defendant: third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a); and third-degree resisting arrest with the use of physical force and violence, N.J.S.A. 2C:29-2(a).

Defendant was twenty years old at the time of his arrest. He had two prior contacts with the criminal justice system as a juvenile but no record of adjudication as a juvenile delinquent, and no record of criminal charges as an adult. He applied for admission to PTI. The prosecutor rejected the application.

Defendant appealed the denial to the Law Division pursuant to Rule 3:28(h). In support of the appeal, defendant and his mother wrote letters. Defendant referred to his record as an honor student and varsity athlete in high school, and he blamed his family's financial difficulties since that time for leading him astray. Describing his mistake as "turn[ing] to partying and alcohol as an escape," defendant offered to make a presentation to high school students about the dangers of under-aged drinking in the context of problems it can lead to other than driving while drunk. Defendant's mother wrote that her son was also a victim on the night of the incident, suggesting that his actions were a product of financial problems, alcohol, and, generally, police abuses.

The Law Division referenced its limited role in reviewing the prosecutor's decision and denied the appeal. Defendant then entered into a plea agreement with the prosecution and pleaded guilty to third-degree resisting arrest. He was sentenced to one year of probation with minimal money penalties and other conditions.

On further appeal before us, defendant argues:

THE PROSECUTOR COMMITTED A PATENT AND GROSS ABUSE OF DISCRETION BY REJECTING HICKMAN'S PTI APPLICATION, AND DEPRIVING HICKMAN OF THE OPPORTUNITY TO RESUME THE EXEMPLARY LIFE HE HAD LED BEFORE HIS FAMILY'S DIRE FINANCIAL CIRCUMSTANCES INTERRUPTED HIS COLLEGE CAREER AND STEERED HIM TOWARD UNDERAGE DRINKING.

A. The Prosecutor Failed to consider All Relevant Statutory Factors.

B. The Prosecutor Misapplied The Guidelines Set Forth in R. 3:28.

Admission to the PTI program requires a favorable recommendation from the PTI Director for the county and the consent of the county prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). In determining whether to consent to admission, the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43-12(e). The statutory list is not exhaustive, and additional relevant factors may also be considered. State v. Negran, 178 N.J. 73, 84 (2003); State v. Brooks, 175 N.J. 215, 226-27 (2002).

Judicial review of the prosecutor's decision is severely limited. Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979). Prosecutors have wide latitude in deciding whom to divert into the PTI program and whom to prosecute. Nwobu, supra, 139 N.J. at 246. Courts grant "enhanced" or "extra" deference to that decision. Ibid.; accord State v. Baynes, 148 N.J. 434, 443-44 (1997). "Judicial review serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord Nwobu, supra, 139 N.J. at 246; State v. DeMarco, 107 N.J. 562, 566 (1987).

Consequently, a reviewing court may order a defendant into PTI over the prosecutor's objection only if the defendant can "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion." State v. Wallace, 146 N.J. 576, 582 (1996) (quoting Leonardis, supra, 73 N.J. at 382) (internal quotation marks omitted); accord Baynes, supra, 148 N.J. at 444.

In this case, the prosecutor rejected defendant's application because of four of the factors listed under N.J.S.A. 2C:43-12(e), which are identified here by their statutory subsection numbers: (1) the nature of the offense, (2) the facts of the case, (7) the needs and interests of the victim and society, and (10) whether or not the crime is of an assaultive or violent nature. The prosecutor also cited Guidelines (1), (2), and (3)(i) under Rule 3:28 as providing the basis for rejecting rather than granting defendant's application because of the seriousness of his assaultive conduct and his initiating an attack on an officer without an adequate explanation.

Defendant argues that the prosecutor failed to take into consideration other relevant factors under N.J.S.A. 2C:43-12(e), namely, the age and motivation of defendant, the fact that he had faced certain personal and financial problems, that he was amenable to participation in a supervisory program, that prosecution would exacerbate the social problem that led to the charges, and that abandoning the prosecution in favor or supervisory treatment would do less harm to society. See N.J.S.A. 2C:43-12(e)(3), (5), (6), (11), (17). However, the fact that the prosecutor's letter explaining the rejection focused on the factors militating against admission to PTI does not mean that other factors were not considered. Here, the assault on the police officer resulted in injuries of a serious nature that required medical care. Defendant's aggressive conduct tipped the balance, in the prosecutor's evaluation, against admission. Furthermore, the letters written by defendant and his mother did not reveal facts compelling a different result.

We agree with the Law Division that defendant did not demonstrate clearly and convincingly a patent and gross abuse of discretion in his rejection from the PTI program. Wallace, supra, 146 N.J. at 582.