STATE OF NEW JERSEY v. ERNEST BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1708-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERNEST BROWN,

Defendant-Appellant.

________________________________________________________________

June 24, 2013

Submitted May 15, 2013 Decided

Before Judges Grall and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-08-1263.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief.

PER CURIAM

Defendant Ernest Brown appeals from his June 3, 2011 judgment of conviction for third-degree burglary, N.J.S.A. 2C:18-2. He argues that the Law Division erred in affirming the denial of pre-trial intervention (PTI) based on the objections of both the PTI director and the Middlesex County Prosecutor. After reviewing the record in light of the contentions advanced on appeal, we affirm.

A Middlesex County grand jury indicted defendant for third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count one); two counts of third-degree conspiracy to commit burglary and theft, N.J.S.A. 2C:5-2, 2C:18-2 and 2C:20-3 (counts two and five); two counts of third-degree burglary, N.J.S.A. 2C:18-2 (counts three and six); and two counts of third-degree theft, N.J.S.A. 2C:20-3 (counts four and seven). Two co-defendants were indicted as well.

Defendant was charged with serving as the "wheelman" for two residential burglaries in North Brunswick over two days in May 2010. In the first burglary, the victim reported that his kitchen window screen was pushed out and his home was ransacked and electronic devices and jewelry taken. The other burglary occurred in a similar manner. According to the PTI Director's offense information, the second victims' daughter came home from school and found pillows scattered on the floor and the entertainment system drawer open. The victim sought restitution of $2425.

Defendant applied for PTI indicating that he was willing to comply with the program's conditions and knew that he had made a bad decision, but wanted to "get his life back together." The PTI Director's recommendation against admission stated that defendant is twenty years old, single, without children, and lives with his parents in North Brunswick. He graduated from high school in 2008, and attended county college for one year. He currently works as a house cleaner and "server at Salad Works." Defendant's juvenile record consists of a dismissed charge of obstructing the administration of the law.

The PTI Director stated that "[t]he [i]nstant [o]ffense involved [defendant] breaking into two homes and taking items that did not belong to him. Both victims suffered a loss and their homes received damage due to the break-in." The PTI Director noted that PTI is a mechanism particularly suited for victimless crimes and that the present offenses affected victims and caused them substantial losses.

The Middlesex County Prosecutor concurred with the PTI Director's determination that defendant's application should be denied. The assistant prosecutor adopted the PTI Director's findings and submitted a two-page letter summarizing his reasons for concurring with the PTI Director, citing the statutory PTI criteria, N.J.S.A. 2C:43-12(e). The prosecutor cited the "nature of the offense," N.J.S.A. 2C:43-12(e)(1), and the "facts of the case," N.J.S.A. 2C:43-12(e)(2), noting that defendant was the driver of a car with stolen items inside when he was approached by police. Defendant admitted that he drove his two co-defendants to various locations while they committed burglaries. Additionally, the prosecutor cited N.J.S.A. 2C:43-12(e)(10), the "assaultive or violent nature" of the offense or its "possible injurious consequences," stating that defendant was instrumental in the burglaries, and although he did not cause overt violence, the burglary of residences traumatizes victims. The prosecutor also cited N.J.S.A. 2C:43-12(e)(8), the extent the "crime constitutes part of a continuing pattern of anti-social behavior," and N.J.S.A. 2C:43-12(e)(9), his criminal record, noting defendant's past diversion in municipal court for obstruction. The prosecutor cited N.J.S.A. 2C:43-12(e)(4), the victim's desire to forego prosecution, stating that the victims did not support the PTI application. He cited N.J.S.A. 2C:43-12(e)(7), "the needs and interests of the victim[s] and society," and N.J.S.A. 2C:43-12(e)(14), whether "the value of supervisory treatment would be outweighed by the public need for prosecution," determining that the needs and interests of defendant and society as a whole require prosecution over supervisory treatment. Additionally, he considered N.J.S.A. 2C:43-12(e)(17), whether society would be harmed if criminal prosecution was abandoned and if the harm "outweigh[ed] the benefits to society," noting that abandoning prosecution in a serious crime is not appropriate when balancing the need for protecting society. Lastly, the prosecutor noted defendant's age and motivation, N.J.S.A. 2C:43-12(e)(3), concluding that because defendant was twenty years old, educated, lived at home, worked two jobs, and denied using drugs and alcohol, his motivation for the offense was avarice.

Defendant appealed to the Law Division arguing "that the prosecutor categorically denied defendant's application based upon the offense alone, rather than evaluating all of the relevant factors."

The judge conducted his own review of the N.J.S.A. 2C:43-12(e) criteria, attaching to his opinion a chart of the seventeen statutory factors, which included the relevant details of this case as they applied to each factor and whether the factor weighed in favor of the State or defendant. The judge determined that the prosecutor did not abuse his discretion.

Defendant then pled guilty to one count of burglary and was sentenced to a two-year probationary term and restitution in the amount of $808.33, one-third of the second victim's loss.

On appeal defendant raises one issue:

POINT I: REJECTION OF DEFENDANT FOR PTI CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION, NECESSITATING REVERSAL AND REMAND FOR RECONSIDERATION AND ADMISSION OF DEFENDANT INTO PTI.

Judicial review of a prosecutor's decision to deny an application for admittance into PTI is limited to whether the defendant has "'clearly and convincingly establish[ed] that the prosecutor's decision constitutes a patent and gross abuse of discretion.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305-06 (App. Div. 2007), aff'd and remanded, 193 N.J. 507 (2008)). "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)).

"The Legislature has provided seventeen criteria, 'among others,' that prosecutors and program directors shall consider in formulating their PTI recommendations." Wallace, supra, 146 N.J. at 585 (citing N.J.S.A. 2C:43-12(e)). "[N]owhere does the statute attempt to instruct the prosecutor on the relative weight to be assigned these several criteria[,]" instead "it clearly intended to leave the weighing process to the prosecutor or program director." Id. at 585-86.

Furthermore, "[a]bsent evidence to the contrary, it is presumed that the prosecutor considered all relevant factors before rendering a decision." State v. Dalglish, 86 N.J. 503, 509 (1981); accord Wallace, supra, 146 N.J. at 584 ("We presume that a prosecutor considered all relevant factors, absent a demonstration by the defendant to the contrary."); State v. Bender, 80 N.J. 84, 94 (1979) ("[U]ntil a defendant demonstrates the contrary, our judges must presume that all relevant factors were considered and weighed prior to a prosecutorial veto.").

The judge and prosecutor provided case-specific reasons for denying defendant's application for admittance into PTI. See State v. Nwobu, 139 N.J. 236, 248-249 (1995). We affirm substantially for the reasons expressed in Judge Joseph Paone's thorough written decision and appended chart of June 2, 2011.

A