STATE OF NEW JERSEY v. ARTURO VINCENTE-PEREZ

NOT FOR PUBLICATION WITHOUT THE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.

ARTURO VINCENTE-PEREZ,

Defendant-Appellant.

___________________________________

March 27, 2014

Submitted March 17, 2014 Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-01-00078.

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

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

PER CURIAM

Defendant Arturo Vincente-Perez appeals from his conviction for third-degree receiving stolen property, N.J.S.A. 2C:20-7, and fencing, N.J.S.A. 2C:20-7.1(b), for which he received a two-year probationary sentence. His appeal focuses on the rejection from the pre-trial intervention program (PTI), which was memorialized in a May 30, 2012 order. We affirm.

On January 26, 2012, Vincente-Perez was indicted for the two crimes for which he ultimately entered guilty pleas. Among other things, Vincente-Perez was accused of being involved in a marketplace for stolen electronic devices, such as laptop computers and satellite radios, being operated from the gasoline service station he managed.

In February 2012, Vincente-Perez applied to enter the PTI program. The assigned probation officer and PTI Director recommended that Vincente-Perez be admitted in the program, because, among other reasons, "[t]he present offense represents the defendant's only identifiable arrest" and "the non-violent nature of his offense."

The Somerset County Prosecutor's Office rejected Vincente-Perez's application because "PTI diversion would contradict the efforts of the [Prosecutor's Burglary Task Force] to arrest and publicly prosecute those who fence stolen property." Citing to Vincente-Perez's "buying and selling stolen property in Somerset County for approximately three years," and the operation being "notorious enough that drug addicts and other thieves knew they could sell stolen property at the gas station immediately following the thefts," the rejection letter asserted, "PTI diversion would also undermine the County Prosecutor's determination that the public is best served, through general and specific deterrence, by traditional prosecution."

Vincente-Perez appealed the PTI rejection to the Law Division. On May 17, 2012, Judge Julie M. Marino issued a thorough written opinion denying relief. After considering the PTI criteria set forth in N.J.S.A. 2C:43-12(e), and the applicable standard of review, the judge found no gross and patent abuse of discretion in the Prosecutor's determination that defendant was not an appropriate candidate for PTI. See State v. Leonardis, 73 N.J. 360, 384 (1977).

On this appeal, Vincente-Perez presents the following points for our consideration:

POINT I: BECAUSE THE REJECTION OF VINCENTE-PEREZ'S APPLICATION FOR ENTRY INTO THE PRETRIAL INTERVENTION PROGRAM (PTI) WAS A PATENT AND GROSS ABUSE OF DISCRETION RESULTING FROM A CLEAR ERROR OF JUDGMENT THAT SUBVERTS THE PROGRAM GOALS, VINCENTE-PEREZ SHOULD BE ADMITTED INTO PTI.

A. IN REJECTING VINCENTE-PEREZ'S PTI APPLICATION, THE PROSECUTOR ABUSED HIS DISCRETION BY IGNORING AS "NOT RELEVANT" SEVERAL KEY FACTORS SET FORTH IN N.J.S.A. 2C:43-12e AND PTI GUIDELINE 3.

B. THE REASONS STATED BY THE PROSECUTOR DEMONSTRATED THAT, WHILE HE IGNORED SEVERAL RELEVANT FACTORS, HE CONSIDERED AND WEIGHED AGAINST ADMISSION, SEVERAL INAPPROPRIATE FACTORS.

C. THE PROSECUTOR'S DECISION TO REJECT VINCENTE-PEREZ'S APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION BECAUSE, IN ADDITION TO HIS FAILURE TO CONSIDER ALL RELEVANT FACTORS AND HIS CONSIDERATION OF IRRELEVANT FACTORS, THE PROSECUTOR'S DECISION WILL CLEARLY SUBVERT THE GOALS OF PTI.

We find these arguments unpersuasive. Our scope of review of a rejection from PTI is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). Like the Law Division judge, we cannot overturn the Prosecutor's determination unless Vincente-Perez can "'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) (citations omitted). "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. (citations omitted). Given a defendant's "heavy burden," ibid., "a prosecutor's decision to reject a PTI applicant 'will rarely be overturned.'" State v. Brooks, 175 N.J. 215, 225 (2002) (citations omitted). Having reviewed the record, we are unable to conclude that Vincente-Perez satisfied that very high standard to warrant our intervention. We affirm substantially for the reasons stated in Judge Marino's opinion.

Affirmed.