A-0STATE OF NEW JERSEY v. DECORDIVA WILLIAMS May 14 2014

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DECORDIVA WILLIAMS,

Defendant-Appellant.

________________________________

May 14, 2014

Submitted December 11, 2013 Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-04-0166.

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

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following defendant Decordiva Williams's indictment by a Somerset County grand jury charging him with fourth-degree shoplifting, N.J.S.A. 2C:20-11(b)(1) (count one), and third-degree receiving stolen property, N.J.S.A. 2C:20-7, defendant applied for admission into the Pre Trial Intervention (PTI) program. The PTI director rejected the application, and defendant appealed to the Law Division. The Law Division judge denied the appeal. Thereafter, defendant pled guilty to fourth-degree shoplifting. The court sentenced defendant to a two-year probationary term and ordered him to pay restitution and imposed applicable fines and penalties. We affirm.

On appeal, defendant contends the court erred when it upheld the prosecutor's rejection of his PTI application because the prosecutor's rejection was substantially based upon a misapplication of N.J.S.A. 2C:43-12(g) and a misunderstanding of defendant's burden in proving his admissibility, constituting a an arbitrary, patent and gross abuse of discretion. We disagree.

The charges arose out of a reported shoplifting incident occurring at an A&P Supermarket in Bernards Township. The officer responding to the report arrived at the store and spoke with the manager who gave a description of the suspects. The officer then located the suspects in the store, a male and female, who agreed to speak with him in the manager s office. The officer reviewed a surveillance video depicting defendant and the juvenile with him stealing items. After the officer administered Miranda1 warnings, defendant waived his rights and agreed to speak to the officer. He then admitted to stealing several boxes of Prilosec earlier that day and admitted that he placed them in his car. Based upon this admission, police obtained a search warrant for the green Pontiac. Police recovered numerous medical and beauty supplies from the vehicle.

In rejecting defendant's PTI application, the Prosecutor considered the fact that defendant was involved with a juvenile in committing the shoplifting offense, and was also engaged in shoplifting at two different supermarkets. Consideration was also given to the fact that the victim wished to prosecute. Additionally, the Prosecutor noted defendant had previously received the benefit of probation and a conditional discharge. The Prosecutor also noted that a bench warrant had been issued when defendant apparently left the courthouse without advising his defense counsel. The Prosecutor characterized this conduct as evidencing defendant's "lack of responsibility."

On appeal to the Law Division, defendant argued, as he does in this appeal, the Prosecutor's decision to reject his admission into PTI was premised upon consideration of irrelevant factors or inappropriate factors and a failure to consider all relevant factors. In particular, defendant urged that because a conditional discharge out of New York is not similar to a conditional discharge in New Jersey, the Prosecutor should not have considered the New York matter. Moreover, defendant asserts the New York offense referenced by the Prosecutor is defined as a "non-crime" under New York law and therefore defendant had no prior criminal record.

While the court acknowledged defendant may not have a criminal record because the New York-imposed conditional discharge was for a non-criminal offense, the court found "the fact remains that the Prosecutor and PTI Director had other legally sufficient and appropriate reasons for rejection, within the statute and precedent." The court reasoned that it would not substitute its judgment for that of the Prosecutor and noted defendant failed to submit any evidence "that would indicate the Prosecutor's decision was unreasonable in light of the PTI guidelines." The present appeal followed.

Our review is guided by the well-settled principle that prosecutors are permitted "wide [discretion] in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). In view of the recognized role of the prosecutor in considering applications for admission into PTI, our Court has "granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI." State v. DeMarco, 107 N.J. 562, 566 (1987) (citing State v. Dalglish, 86 N.J. 503, 513 14 n. 1 (1981)). As a result, the scope of our review "is severely limited. . . . [and] 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)) (citations omitted). "The question is not whether we agree or disagree 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. "The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993).

In order for a defendant to overturn a prosecutor's denial of admission into PTI a defendant must "clearly and convincingly establish that the prosecutor's refusal . . . was based on a patent and gross abuse of his discretion . . . ." Ibid. (emphasis omitted) (internal quotation marks and citations omitted). An abuse of prosecutorial discretion is established where a defendant demonstrates "that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Bender, 80 N.J. 84, 93 (1979). "[S]uch an abuse of discretion . . . rise[s] to the level of 'patent and gross' . . . [whenever it] clearly subvert[s] the goals underlying [PTI]." Ibid.

Applying these standards to the case at hand, we conclude that defendant's arguments are without merit. Defendant was afforded the opportunity to present any facts or materials demonstrating his amenability to the rehabilitative process. Defendant maintained that he had no adult criminal record, he was a high school graduate, attended college for two years, and had been gainfully employed in a number of positions.

When balanced against the factors the Prosecutor considered, namely, defendant's prior failed efforts at diversion, the use of a juvenile in the commission of the underlying offense, and the victim's desire for prosecution, we cannot conclude the Prosecutor's decision rejecting defendant's application for admission into PTI represented any abuse of discretion, let alone a patent and gross abuse of discretion.

Finally, we disagree with defendant's argument that the prosecutor misapplied N.J.S.A. 2C:43-12(g) and his reliance upon State v. McKeon, 385 N.J. Super. 559 (App. Div. 2006), to support this contention. Although the trial court referenced this contention and our decision in McKeon in its written decision, it did not specifically address the issue. Because we review a trial judge's interpretation of the law de novo, had the issue been addressed, we would not have been bound by the court's legal conclusions in that regard. Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995).

N.J.S.A. 2C:43-12(g), provides: "Supervisory treatment may occur only once with respect to any defendant[.]" We agree with the State that McKeon is distinguishable. There, both the program director and prosecutor specifically rejected the defendant's PTI application solely on the basis that the defendant had participated in a diversionary program in Pennsylvania. We held that the term "'[s]upervisory treatment,' found in N.J.S.A. 2C:43 12(g) refers to diversionary programs under N.J.S.A. 2C:43 12 and to conditional discharges under N.J.S.A. 24:21 27, and N.J.S.A. 2C:36A 1, not to diversionary programs under the laws of other states." McKeon, supra, 385 N.J. Super. at 569. We additionally held that the Legislature, in enacting N.J.S.A. 2C:43-12(g) did not intend to "bar an otherwise eligible defendant from PTI solely because he was previously admitted to a pretrial diversionary program in another state." Id. at 571

We made clear, however, that a prosecutor is not precluded from considering an applicant's prior participation in a diversionary program in another state. Ibid. "In an appropriate case, prior admission to an out-of-state diversionary program may be considered as a factor in determining whether the defendant should be admitted, e.g., '[t]he extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior.'" Ibid. (quoting N.J.S.A. 2C:43 12(e)(8)).

That is precisely what occurred here. The prosecutor considered defendant's prior participation in a New York diversionary program, together with the other factors referenced in the rejection letter, making defendant "otherwise ineligible" for admission into the program.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).