STATE OF NEW JERSEY v. MARIO G. ALVAREZ-URENA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-0579-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIO G. ALVAREZ-URENA,

Defendant-Appellant.

_______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALJUDE RODRIGUEZ,

Defendant-Appellant.

_______________________________

September 19, 2013

 

 

Before Judges Messano and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-02-0315.

 

Joseph E. Krakora, Public Defender, attorney for appellant Mario Alvarez-Urena (Frank M. Gennaro, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant Waljude Rodriguez (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the briefs).

 

PER CURIAM

These appeals, calendared back-to-back, are consolidated for purposes of this opinion. Co-defendants are husband and wife and were charged, along with their daughter, Chrissy Alvarez, in a multi-count indictment.1 Tried by a jury, defendants were convicted of third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a).

In separate appeals, defendants challenge their convictions. Defendant Mario Alvarez-Urena argues:

POINT ONE

THE TRIAL JUDGE SHOULD HAVE RECUSED HIMSELF.

 

POINT TWO

DETECTIVE HAAS' NARRATION OF THE VIDEO RECORDING CAPTURED BY THE CAMERA IN A PATROL CAR WAS ERROR WHICH UNDULY PREJUDICED DEFENDANT.

 

POINT THREE

THE TRIAL COURT'S ADMISSION OF A HEARSAY STATEMENT MADE BY DOCTOR JACOBS WHICH PURPORTED TO BE DEFENDANT'S ADMISSION THAT HE ASSAULTED THE POLICE, ALTHOUGH EVENTUALLY STRICKEN, DENIED DEFENDANT A FAIR TRIAL.

 

POINT FOUR

THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A MISTRIAL WAS ERROR.

 

In her appeal, defendant Waljude Rodriguez argues:

POINT ONE

THE TRIAL JUDGE ERRED IN FAILING TO RECUSE HIMSELF FROM THE CASE WHERE THE POTENTIAL FOR BIAS EXISTED AS A RESULT OF THE TRIAL COURT'S INVOLVEMENT IN A PRIOR CRIMINAL CASE INVOLVING THE SAME JUVENILE AND SOME OF THE SAME FORT LEE POLICE OFFICERS.

 

POINT TWO

THE JURY VERDICT FINDING RODRIGUEZ GUILTY OF THIRD DEGREE RESISTING ARREST, PURSUANT TO N.J.S.A. 2C:29-2, AND ACQUITTING HER ON AGGRAVATED ASSAULT, PURSUANT TO N.J.S.A. 2C:12-1, WAS INCONSISTENT.

 

POINT THREE

THE JURY VERDICT CONVICTING RODRIGUEZ OF THIRD DEGREE RESISTING ARREST CAN NOT STAND AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE.

 

POINT FOUR

THE TRIAL COURT ERRED IN FAILING TO OVERTURN THE PROGRAM DIRECTOR'S DENIAL OF RODRIGUEZ'S ENTRY INTO PTI, EVEN THOUGH THE DECISION CONSTITUTED A GROSS ABUSE OF DISCRETION BY THE PROGRAM DIRECTOR.

 

We have considered each of these arguments, in light of the record and applicable law. We affirm.

 

 

 

I.

Bergen County Indictment No. 09-02-315 dated February 11, 2009, charged co-defendants Alvarez-Urena and Rodriguez2 as follows: as against Alvarez-Urena, (a) third-degree aggravated assault by purposely, knowingly or recklessly causing bodily injury to Officers Tilton, Haas, Horton, and Cullen, N.J.S.A. 2C:12-1(b)(5) (count one, two, three and four), (b) third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count five); as against Rodriguez third-degree aggravated assault by purposely, knowingly or recklessly causing bodily injury to Officer Miskovitz, N.J.S.A. 2C:12-1(b)(5) (count six) and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count seven).

The following facts are taken from the trial court record. The nineteen-day jury trial was conducted between February 23 and April 13, 2011.

While working as part of a municipal anti-crime unit, Fort Lee plainclothes detective Ira Haas was patrolling in an unmarked police vehicle on November 4, 2008. At 10:12 p.m., Detective Haas observed a driver use a cellular telephone while driving on Route 46. He activated his lights to effectuate a traffic stop. The vehicle's driver complied, stopping on Washington Terrace, in Leonia. By 10:15 p.m., uniformed Fort Lee Patrolman Mark Miskovitz arrived on the scene in a marked patrol vehicle. The vehicle was equipped with an onboard mounted camera, which activated automatically when the lights on the patrol vehicle were switched on. The camera's microphone was in Officer Miskovitz's left pants pocket. Thereafter, Fort Lee Detective Robert Tilton and Leonia Patrolman Oxnard arrived at the scene.

Mario Mattesich, Jr., drove the vehicle stopped by police and P.A., defendants' minor son, was the front seat passenger. While speaking to Mattesich, Detective Haas noticed the aroma of marijuana emanating from P.A.'s direction. Detective Haas instructed P.A. to exit the vehicle, patted him down and found marijuana tucked in the waistband of his jeans. Further, Detective Haas found approximately one hundred empty small Ziploc bags commonly used to package and sell marijuana in the pouch pocket of P.A.'s hooded sweatshirt. He arrested P.A. for possession of marijuana with intent to distribute. P.A. was placed in the rear seat of Officer Miskovitz's marked patrol car without resistance.

In accordance with police procedure, Officer Miskovitz positioned the vehicle's onboard camera to record P.A.'s movements in the back of the patrol car. However, once the arrest was made, he switched off the microphone.

Detective Haas informed Mattesich he would be issued a summons for the motor vehicle violation and released. He returned to his police vehicle to prepare the paperwork, while Officers Miskovitz and Oxnard stood outside Detective Haas's vehicle.

The prosecution played the onboard camera video for the jury, which shows P.A. in the police vehicle, twisting in his seat and talking. Using his cell phone, he called co-defendants. Within minutes, a white SUV arrived at the scene. Officer Miskovitz described the events, stating: "All a sudden I see this white Durango come out of nowhere from [Routes] 1&9 south and turn[] on to Washington Terrace very quickly. . . . I was still in the roadway, and I yelled to the guys hey, watch out, look out[.]" The Durango had squeezed past Officer Miskovitz's patrol car and "just stopped in the middle of the car stop . . . blocking the whole road." Three people, later identified as the co-defendants, simultaneously "jumped out" of the Durango. When Officer Miskovitz "realized what was going on," he reactivated the microphone located in his pocket.

The three co-defendants strode toward the officers "at a very fast pace" and were "screaming at the top of their lungs," yelling "what are you doing with our son, why you beat our son up." Detective Haas testified, "It was a very volatile situation." Rodriguez repeated "where the fuck's my son." Alvarez-Urena "bladed his body, hands down at his sides, fists balled up" as he approached Detective Tilton in "a fighting stance." "Chrissy Alvarez began yelling at the top of her lungs that the Fort Lee Police plant evidence all the time, she ha[d] friends on the Fort Lee Police" and "continuously used the word nigger[,] nigger this and nigger that and pointed that at us." Directed at no particular officer, Alvarez called the police "fucking assholes" and "a fucking joke."

The officers tried to calm the situation, telling defendants it was "a simple arrest" and P.A. would be taken to the police station and released because he was a juvenile. Officer Miskovitz and Detective Haas instructed defendants to calm down and leave the scene or they too would be arrested. Alvarez-Urena pushed Detective Tilton and Detectives Tilton and Haas grabbed his arms. Then Rodriguez and Alvarez approached Officer Miskovitz's patrol vehicle and opened the back door, releasing P.A. After observing P.A. exit the vehicle, Officer Miskovitz radioed for backup, alerting they were in need of immediate assistance, by using a "10-99" signal. He stated in his ten-years of police service this was the first time he invoked this extremely serious police signal for help.

As Detectives Haas and Tilton held P.A. against the rear quarter panel of the patrol car, Alvarez-Urena began using his arms and legs to hit and kick the detectives. Alvarez-Urena struck Detective Haas in the chest and jaw and Detective Tilton in the chest, breaking the skin through his sweatshirt and jacket. When Alvarez-Urena clamped Detective Tilton's "forearm in his mouth," he punched Alvarez-Urena in the face. Alvarez-Urena persisted and only released the officer's limb when Detective Haas punched him in the face. Police took Alvarez-Urena to the ground. After he fell face down with Detectives Tilton and Haas behind him, Alvarez-Urena continued to struggle and ignored orders to show his hands. Then he grabbed Detective Haas's sweatshirt in his teeth.

Meanwhile, P.A. was yelling at the officers and kicked Detective Tilton in the back. Officer Miskovitz grabbed Rodriguez's arms to place her under arrest. When he directed her to put her hands behind her back, she "said no" and pulled away. This caused Rodriguez to lose her balance and fall to the ground on her back and Officer Miskovitz fell on top of her. He tried to hold her down and handcuff her. When told to put her hand behind her back, Rodriguez again said "no" and "kick[ed]" Officer Miskovitz "in the chest." P.A. screamed to let his mother go. Officer Miskovitz repeatedly told P.A. to sit down and get back in the police car but "he said no." Detective Haas saw P.A. kicking at Officers Oxnard and Miskovitz while they struggled on the ground with Rodriguez.

Within two minutes of the distress call, back-up arrived. Each of the responding patrol cars was equipped with an onboard video camera, which began recording automatically when the car's lights were activated. The videos, played for the jury, capture chaotic sounds of screaming, yelling and profanity. Detective Haas identified the various individuals and their voices.

Among those responding to the distress call were Officers Cory Horton and Brian Cullen, who helped Detectives Tilton and Haas handcuff Alvarez-Urena who was "yelling . . . , flailing his arms, [and] kicking." Detectives Haas and Tilton flanked either side of Alvarez-Urena's body and Officer Cullen was on his legs. When Officer Horton went to grab his arm, Alvarez-Urena swung and struck him in the face and chest, for which he declined the need for medical treatment.

Detective Haas suffered a sore jaw, and "minor aches and pains" that lasted "maybe a day." Alvarez-Urena suffered "[s]ome facial bruising" and was taken from the scene by ambulance.

Sergeant Leonard Cottrell also arrived on the scene and helped Officer Miskovitz subdue Rodriguez and handcuff her. He characterized Rodriguez's conduct as "combative," with her arms and legs "flailing" and "she was kicking out" and "pulling away." Officers Miskovitz and Horton were forced to carry Rodriguez to a police car, because she refused to walk or stand up and continued to scream and yell.

Officer Horton also assisted Officer Miskovitz as he attempted to handcuff Rodriguez, the suspect who was on the ground kicking and pulling her arms away. Sergeant Cottrell was "kicked three times in the back" by P.A. as he assisted in handcuffing Rodriguez. Officer Horton stated she "refused to get up and stand, so we had to carry her to the vehicle." Officer Miskovitz did not observe injuries suffered by Rodriguez, and repeatedly denied hitting, punching or kicking her. However he admitted being "a little pissed off" at "getting kicked for no reason" and calling her "a fucking bitch" and a "fucking whore." He received hospital treatment for a badly sprained index finger, caused when Rodriguez kicked him.

Sergeant Cottrell and Officer Horton next assisted Officer Oxnard, who was arresting Alvarez. Officer Horton stated she was "screaming, kicking, [and] resisting." When handcuffed, Alvarez kicked Sergeant Cottrell just below his crotch area. He "reacted" by kicking her back. None of the officers drew their guns, or used their batons, flashlights or pepper spray to control the co-defendants.

Over the State's objection, Alvarez-Urena called Jeffrey Jacobs, M.D., the plastic surgeon who examined defendant after he was treated in the Holy Name Hospital emergency room. Dr. Jacobs related his diagnoses. He was also permitted to read the various comments made by other doctors and unidentified sources contained in Alvarez-Urena's hospital records to the jury. Dr. Jacobs stated upon admission to the hospital, Alvarez-Urena was unable to answer questions, was "moaning constantly" and was "not verbal." He suffered "multiple trauma head to foot" with abrasions on his forehead, nose, and the left side of his face, as well as fractures near his nose and eye. Dr. Jacobs read from the medical records, which stated: "Patient states he was hit multiple times with fists, was thrown to the ground and kicked. Patient states he lost consciousness, became aware of his whereabouts in the hospital." Another section noted: "The patient states he was in an altercation with the police after getting involved with his son who was being arrested[.]"

Alvarez-Urena also presented Corrections Officer Edward Bajzath, who photographed him on November 6, 2008, at 4:22 p.m. during processing at the Bergen County Jail (BCJ). The picture shows defendant wearing a neck brace. Rose Seyler the intake nurse who examined Alvarez-Urena and admitted him to BCJ medical unit, confirmed he wore a neck brace and was observed for potential neurological problems. Next, Josephina Rodriguez, a registered nurse employed by BCJ who screened Alvarez-Urena when he arrived at the infirmary, testified. She described his bruised and swollen left eye and his complaints of pain, for which he was prescribed Tylenol.

Fort Lee Police Officer Christina Blue screened Rodriguez at police headquarters following her arrest. She testified Rodriguez "was complaining of pain," but she did not recall her appearance. Rodriguez also called Seyler, who examined her when she was admitted to BCJ on November 4, 2008. Seyler described injuries to the right side of Rodriguez's face, bruising and abrasions on her left shoulder and noted she difficulty moving her left arm. Seyler referred Rodriguez for a doctor's examination to assess the reported decreased range of motion in her left arm.

On April 13, 2011, the jury acquitted defendants of aggravated assault, but convicted them of resisting arrest by the use of physical force or violence. On June 3, 2011, the court sentenced Alvarez-Urena to three years' probation and Rodriguez to two years' probation. These appeals ensued.

II.

We first address the single issue raised by both defendants on appeal. Thereafter, we consider the separate challenges by Alvarez-Urena, followed by the arguments raised by Rodriguez.

A.

Co-defendants argue the trial judge abused his discretion in denying motions for his recusal. We reject defendants' bald allegation.

The oral application made before trial suggested the trial judge would be biased because he previously presided over a hearing, wherein P.A. entered a guilty plea to a 2007 juvenile adjudication involving possession of a controlled dangerous substance and the aggravated assault of the arresting police officers. In moving for the judge's recusal, Rodriguez's counsel asserted she was "of the opinion that it would be improper" for the judge to try her case as she "believe[d] that he made certain statements on the record that she found to be prejudicial" as "the statements indicated a certain mindset that would probably have a negative impact on their case." Rodriguez maintained P.A. would be "the main witness" in this case.

In denying the motion, the judge acknowledged although he had a juvenile calendar, he had "absolutely no recollection of anything related to [P.A.]'s case" and stated "I never, ever recall seeing any of these defendants before." The judge also noted P.A. was not a defendant in the instant case, he would not be the factfinder, and performing his duties in a past juvenile matter would not require recusal. We agree.

The decision to recuse rests within the judge's sound discretion and will only be reviewed for an abuse of that discretion. State v. McCabe, 201 N.J. 34, 45 (2010). Judicial Cannon 3(1)(a) requires a judge "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," including instances where he or she "has a personal bias or prejudice concerning a party or . . . has personal knowledge of disputed evidentiary facts concerning the proceeding." Further, the Court Rules require a judge's disqualification on his or her own motion when the judge "has given an opinion upon a matter in question in the action," R. 1:12-1(d), or "when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so," R. 1:12-1(g).

Accordingly, the fundamental showing warranting disqualification is "prejudice or potential bias." State v. Marshall, 148 N.J. 89, 276 (1997). A movant seeking a judge's recusal must present a true and specific factual basis supporting the request, already known to the court. Ibid. A judge is not required to withdraw based on nothing more than mere suggestion or innuendo. Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009). More important, the fulfillment of judicial duties by presiding over other proceedings cannot serve as the basis for disqualification absent a showing the judge exhibited bias, prejudice, or a personal or private interest in the matter. State v. Walker, 33 N.J. 580, 592 (1960).

Here, we find no abuse of discretion in denying co-defendants' motion. Neither co-defendant offered specific factual statements made or actions by the judge which displaying bias against them or favor the police officers. Their arguments offered nothing more than generalities, insufficient to even consider recusal.

B.

Alvarez-Urena's additional arguments attack the discretion exercised by the judge. He challenges as error: the judge's decision overruling his objection to Detective Haas's narration of the onboard video recordings, admitting prejudicial and inadmissible hearsay evidence, and denying his motion for a mistrial.

Defendant first asserts that allowing Detective Haas to comment on events unfolding in the video recordings played for the jury improperly bolstered the credibility of the State's witnesses. Over defense objections, the prosecutor would interrupt the video as it played for the jury to ask Detective Haas what was happening, whether he could identify people, voices, or what was said. As he was able, he responded. Defendant argues the court should have required the State to provide a transcript rather than allowing Detective Haas to interpret witnesses' statements as he heard them on the video. See e.g., State v. Lake, 408 N.J. Super. 313, 320 (App. Div. 2009) (admitting a recording and corresponding transcripts). Further, defendant maintains a hearing to settle the contents of any inaudible portions of the recording was necessary. State v. Driver, 38 N.J. 255, 287-88 (1962).

As the trial judge noted, Detective Haas's descriptions and explanations corresponded with what is shown on the screen. We find nothing improper by his characterizations such as, stating P.A. was "making a cell phone call" or the altercation was "a fight." It was clear the statements contained Detective Haas's perceptions of events in which he directly participated. Jurors could assess his statements, as well as evaluate what they viewed and heard. N.J.R.E. 701 (permitting as lay opinion testimony regarding common issues like speed or distance).

We also reject the notion that Detective Haas's testimony offered opinions or inferences. He answered direct questions based on his knowledge of those events he witnessed. When he did not know the answer, he said so. When objections to improper question were made, the judge sustained the objections. However, defendant never challenged the admissibility of the videotape or Detective Hass's ability to identify the persons and voices recorded. Finally, defendant does not support the reason for and never requested a Driver hearing. We determine no error occurred.

Next, defendant argues plain error occurred when Dr. Jacobs was improperly permitted to read defendant's statements from his hospital records. The more than 100-page hospital record was provided to the State that morning. The defense disclosed Dr. Jacobs would be called as a witness the night before. The prosecutor agreed Dr. Jacobs could testify, limited "to what . . . this doctor did and what paperwork he authored[.]" The defense objected, arguing "this doctor can testify to every single page" because "he was part of a team of doctors" who treated defendant. Defendant maintained the file was admissible as a business record and defense counsel insisted "there are no red flags in here" and "no surprises." When the judge inquired whether defense counsel was aware of anything in the reports that might "be objectionable" or "problematic," defense counsel replied "no, there's nothing problematic." The judge overruled the State's repeated objections to Dr. Jacobs's direct testimony regarding the recorded statements made by other physicians who had treated defendant. On cross-examination, the State requested Dr. Jacobs read what was recorded as history, which included defendant's statements to these treatment providers. Defense counsel relied on N.J.R.E. 803(c)(6), that the file fell within the medical records exception and were admissible as statements made in good faith for the purposes of diagnosis or medical treatment. N.J.R.E. 803(c)(4).

During cross-examination, the prosecutor asked Dr. Jacobs to read the note in defendant's history purportedly recording defendant's admission: "[p]atient assaulted detectives as they were attempting to place his son under arrest." No objection occurred. On redirect Dr. Jacobs was asked whether the history noted was supplied by the arresting police officers. Dr. Jacobs stated he did not know because he was not there and was just reading the chart. Defendant moved the medical records in evidence, but sought the history statement to be redacted. Defense counsel explained his failure to object resulted because he "didn't want to highlight the issue and give the impression to the jury that I'm trying to hide something."

After extensive argument, the judge determined the statement may not have been made by defendant, making it misleading and unduly prejudicial to defendant. The judge fashioned a curative instruction that he issued prior to summations. The judge stated Dr. Jacobs testified the statement was not made to him, and Dr. Jacobs had not relied on it for treatment, since he read it for the first time at trial. He instructed: "As a result of that, there's no way to know whether or not that was said, and therefore I decided to strike it. Therefore, you're not to consider that in any way in your deliberations. All right?"

On appeal, defendant argues he suffered prejudice because Dr. Jacobs's reading of the statement from the hospital records portrayed him as the aggressor, thwarting his claim that he acted in self-defense when he resisted arrest. We disagree.

The document was produced late in the trial and offered into evidence by defendant, who assured the court it did not contained anything problematic. It appears no one had focused on the statement until the prosecutor asked Dr. Jacobs to read it aloud. Defendant failed to object and therefore invited this error. See State v. Jenkins, 178 N.J. 347, 358 (2004) (stating a defendant may not ask the court to take a certain course of action and then, upon an unfavorable outcome, complain that the course he requested was prejudicial). Applying the invited error doctrine to criminal matters "is designed to prevent defendants from manipulating the system." Id. at 359.

Once the matter was presented to the judge by an interposed objection, he determined the hearsay was prejudicial, and addressed defendant's concern. Had the judge been given the opportunity to review the issue before Dr. Jacobs answered the State's question, we are confident he would have noted the ambiguity of the identity of the statement's speaker and the likelihood that defendant may not have related the comment. The judge then addressed the problem swiftly and directly, excluding the hearsay from evidence and instructing the jury to ignore the statement.

Juries follow the court's instructions. State v. Burns, 192 N.J. 312, 335 (2007). Here, we conclude any prejudice from the admission of the statement was cured by the judge's instruction because he was acquitted of the assault charges. State v. Vallejo, 198 N.J. 122, 134-35 (2009).

Finally, Alvarez-Urena contends the judge erred in denying his motion for a mistrial. On the fourth day of trial, during Rodriguez's attorney's cross-examination of the State's first witness, Detective Haas, asked the same question twice and then proceeded to ask the question for a third time. Defense counsel for Rodriguez and Alvarez passed comments which could be considered sarcastic. The prosecutor objected to the repetitive questioning and the judge remarked, "Maybe the third time is the charm." During sidebar, counsel for Alvarez-Urena requested a mistrial, "concerned" defendant might "get dragged down" by this banter, preventing him from getting a fair trial. The motion was denied.

Denying the motion for a mistrial based on these fleeting comments was not an abuse of discretion nor did it result in manifest injustice. See State v. Jackson, 211 N.J. 394, 407 (2012) (holding a trial court's ruling on a motion for a mistrial will not be disturbed on appeal absent a showing that the court's abuse of discretion resulted in a manifest injustice). "'A defendant is entitled to a fair trial but not a perfect one.'" State v. Wakefield, 190 N.J. 397, 537 (2007) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953) (citations omitted).

 

C.

Rodriguez presents three additional arguments for our consideration. She seeks reversal of her conviction stating the verdict was inconsistent, and alternatively that the verdict was against the weight of the evidence. Additionally, she argues the court erred in failing to overturn the prosecutor's denial of her admission to the county pre-trial intervention (PTI) program, which we will address first.

On October 26, 2009, the court denied defendant's appeal of the prosecutor's decision to deny her PTI admission. The record on appeal does not include the underlying documents supporting the prosecutor's denial or defendant's appeal of that decision. Nevertheless, the transcript of oral argument contains discussion regarding the reasons cited to deny defendant's PTI application.

The Criminal Division PTI Director identified three reasons for denying defendant's application for admission, including: there was a related open charge pending against defendant in Fort Lee municipal court; the offense was deliberately committed with violence or threat of violence against another; and "the needs and interests of the victim and society" warranted prosecution of the offense. Relying on the applicable statutory provisions, the prosecutor's denial letter specifically opposed defendant's admission into PTI, adopting the PTI Director's recommendation and elaborating on the justification to deny admission as follows: defendant had traveled with her co-defendants to the scene where police had effectuated an arrest, and opened the police car, allowing the suspect to attempt to flee; the offense involved a "violent attack against law enforcement officials," resulting in injuries, which is conduct that must be deterred; defendant's admission to PTI would prejudice the State's case against co-defendants who awaited trial; the complainant, the Fort Lee Police Department, did not want to forego prosecution; there was a likelihood defendant would commit another offense similar to this one; and society had "a vested interest in trying to protect those individuals whose job it is . . . . to effectuate the laws of this state."

On appeal, defendant argues she is "the ideal candidate for PTI as she lacked a prior criminal history, was charged with third-degree crimes, and was unlikely to engage in any future criminal conduct." We disagree that the judge erred in failing to find the rejection of defendant's PTI application was a patent and gross abuse of prosecutorial discretion.

The statewide PTI program is governed by N.J.S.A. 2C:43-12 and the Supreme Court's guidelines for implementing the PTI program are set forth in Rule 3:28. Generally, individuals who have not previously been convicted of a crime are afforded the opportunity to avoid prosecution by receiving rehabilitative services or supervision. N.J.S.A. 2C:43-12(a). A PTI application is initially reviewed by the Criminal Division PTI Director, R. 3:28; however, admission or denial of an applicant to a PTI program rests with the reasoned discretion of the prosecutor. State v. Leonardis, 71 N.J. 85, 104-05 (1976), aff'd on reh'g, 73 N.J. 360, 384 (1977); N.J.S.A. 2C:43-12(e).

N.J.S.A. 2C:43-12 identifies seventeen factors for consideration when examining an application for PTI admission. N.J.S.A. 2C:43-12(e). If the application is denied, a written statement of findings supporting that conclusion must be issued. N.J.S.A. 2C:43-12(f). A defendant may appeal the prosecutor's rejection of a PTI application by filing an appeal with the Superior Court. Ibid. The defendant bears the burden to "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008) (internal quotation marks and citation omitted).

Although we have only been provided with the appeal transcript and not the documentation supporting the State's or defendant's position, we are satisfied from our review of the record that the prosecutor's denial was properly supported. The prosecutor denied PTI admission citing N.J.S.A. 2C:43-12(e)(1), (2), (4), (7), (10), (11), (14), (15), (16), and (17) and the corresponding guidelines from the Court Rule.

In his review, the trial judge considered and rejected defendant's bases for setting aside the prosecutor's determination. She did not expressly rebut each factor cited by the prosecutor, but rather predominately relied on her lack of a prior criminal record and her claimed concern for her child. The judge found these considerations insufficient when weighed against the other applicable factors, noting defendant had not met her burden to show a patent and gross abuse of discretion. We find no error in the judge's analysis or conclusion.

Defendant's remaining challenges are related. She argues her conviction must be reversed because the jury's verdict is inconsistent or, alternatively, her acquittal for aggravated assault means her conviction for resisting arrest by uses of force was against the weight of the evidence. These arguments lack sufficient merit to warrant a written discussion. R. 2:11-3(e)(2). We add only the following comments.

So long as a jury's conviction on a charge is supported by sufficient, credible evidence in the record, the mere fact that acquittal of other charges may appear inconsistent is "beyond the purview of correction" by a court. State v. Kelly, 201 N.J. 471, 487 (2010). "[A] defendant is forbidden from collaterally attacking a guilty verdict on one count with an apparently irreconcilable acquittal on another count." Ibid. The jury's verdict reflects a finding from the evidence that defendant's use of force or violence was to resist arrest, rather than to "purposely, knowingly or recklessly" cause bodily injury to the police officers.

Defendant moved for acquittal after entry of the verdict, R. 3:18-2, which was denied. On appeal, she argues the trial judge erred. We disagree.

In reviewing a motion for acquittal based on insufficient evidence pursuant to R. 3:18-1, we apply the same standard as the trial court. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Felson, 383 N.J. Super. 154, 159 (App. Div. 2006). Thus, motion for judgment of acquittal will not be granted where:

[V]iewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

 

In this regard, "a jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." State v. Kittrell, 145 N.J. 112, 131 (1996) (quoting State v. Brown, 80 N.J. 587, 592 (1979)).

Here, the record contains ample evidence, including police testimony and the contemporaneous video recordings, to support defendant's conviction for use of physical force to resist arrest, beyond a reasonable doubt. The trial court properly denied her motion concluding the State's evidence proved her guilt beyond a reasonable doubt.

Affirmed.

1 In our opinion we have designated each co-defendant by their last name; that is, Alvarez-Urena, Rodriguez, and Alvarez. Further, we note co-defendant Alvarez has not participated in this appeal.

2 Rodriguez's name is misspelled as "Rodrigueza" in the indictment. Further, we note count eight of the same indictment charged co-defendant Alvarez.