STATE OF NEW JERSEY v. MANUEL D. HENDERSON

NOT FOR PUBLICATION WITHOUT THE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.

MANUEL D. HENDERSON, a/k/a

EMANUEL HENDERSON,

Defendant-Appellant.

_______________________________________

May 28, 2014

Submitted April 29, 2014 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-08-00560.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Thomas N. Zuppa, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Manuel D. Henderson appeals from the trial court's December 19, 2012 decision denying his application to reverse the prosecutor's denial of his admission to the Pre-Trial Intervention Program (PTI). The prosecutor's refusal to admit Henderson to PTI despite the Criminal Program Director's recommendation that he be admitted to PTI was neither a gross abuse of discretion nor arbitrary and capricious; therefore, we affirm.

Henderson was the unlicensed driver of a car that was reported stolen. On July 16, 2012, he was arrested and charged with the third degree crime of receiving stolen property, in violation of N.J.S.A. 2C:20-7(a). By August 30, 2012 the charge had been reduced to fourth degree joyriding in violation of N.J.S.A. 2C:20-10(b), and Henderson, on that date, waived his right to have the case presented to a grand jury. The same day, the prosecutor made an offer to allow Henderson to make a no plea PTI application which Henderson agreed to do.

Henderson did apply for PTI and on October 19, 2012, the Criminal Director of the Program recommended he be accepted to the program, even though he described the offense as the more serious charge of receiving stolen property. On October 26, 2012, the prosecutor's office refused to consent to Henderson being admitted to the program. In a letter on that date, the prosecutor also mistakenly stated that Henderson was charged with receiving stolen property and denied his application to PTI for the following written reasons:

1. Nature of the offense: Defendant is an unlicensed driver driving a stolen motor vehicle.

2. This crime, receiving stolen property, constitutes part of a continuing pattern of anti-social behavior. Defendant has been placed on juvenile probation before and it was violated once.

3. Defendant requires greater supervision than that available through PTI.

On December 13, 2012 the trial court heard oral argument from both sides on Henderson's application to reverse the prosecutor's refusal to admit him to PTI. On December 19, 2012 the court rendered its decision denying Henderson's appeal of the prosecutor's decision. On January 3, 2013 Henderson pled guilty to driving without a license and to unlawful taking of a means of conveyance (joyriding) reserving his right to appeal denial of acceptance into PTI. On February 15, 2013 Henderson was sentenced to three years' probation.

On appeal Henderson raises the following:

POINT ONE

THE PROSECUTOR COMMITTED A PATENT AND GROSS ABUSE OF DISCRETION BY REJECTING THE PTI DIRECTOR S RECOMMENDATION THAT HENDERSON BE ACCEPTED INTO THE PTI PROGRAM

Where Henderson Was Charged With Fourth-Degree Joyriding and Driving Without a License, the Nature of the Offense Did Not Constitute a Legitimate Basis for Rejection

The Record Did Not Support the Prosecutor s Conclusion That Henderson s Offense was Part of a Continuing Pattern of Antisocial Behavior for Which Henderson Required Greater Supervision Than PTI Provides

The Prosecutor Failed to Consider Relevant Statutory Factors that Militated in Favor of Henderson s Acceptance Into the PTI Program

Henderson was eighteen years old when he was arrested and charged for the first time as an adult. He had been charged as a juvenile delinquent at the age of fifteen. At the age of sixteen he was arrested for another juvenile delinquency matter and placed on probation. He violated his probation by failing to have a drug and alcohol evaluation completed, failing to pay fines, failing to report weekly as directed, failing to attend drug and alcohol treatment and finally, by being arrested on October 4, 2010 for a third juvenile delinquency matter. His juvenile probation officer wrote in a report on October 21, 2010 that Henderson "has demonstrated through his violations of probation that he does not have respect for the courts."

Henderson, as he himself said at his PTI interview, had a "rough" time as a youth. His father was incarcerated and his mother suffered from heart problems. He had lived with his grandmother. He did not complete high school.

After violating juvenile probation in October 2010, he was again placed on probation for both of the latter two delinquency charges. It was arranged for him to move into a transitional living facility where he could receive counseling. He was attending a life skills course and he obtained a job. Counsel argues Henderson was turning his life around, but in July 2012 he committed his first adult offense while still on probation. He borrowed a car from a friend to move some belongings. He knew it was not his friend's car and suspected it might be stolen. Henderson had no driver's license, but drove the car to his life skills class where a staff member reported his unlicensed driving to the police. The police determined the car was stolen, resulting in his first adult arrest and violation of his second juvenile probation.

It was Henderson's first offense as an adult and the charge was for a fourth degree crime by the time he applied for PTI. He also had a job and was taking steps to put his life together. The Criminal Program Manager recommended admission to PTI finding Henderson would be motivated to comply with the conditions. The prosecutor, however, did not accept the recommendation. Both the program manager and the prosecutor mistakenly listed his offense as the third degree charge of receiving stolen property, when in fact the charge had already been reduced to the fourth degree joyriding charge, but this does not appear to be of any significance to either the manager or the prosecutor making the decisions. Both reviewed the nature of the offense as an unlicensed driver operating a vehicle that he had reason to suspect may be stolen while already on probation. The prosecutor found this offense was part of a pattern of anti-social behavior and disrespect for laws and courts. While the program director found Henderson would be motivated to comply with PTI supervision, the prosecutor found he had repeatedly demonstrated a lack of motivation to comply with court ordered supervision.

Admission to PTI is a prosecutorial function and prosecutors' decisions must be given a high degree of deference by the court. See State v. Brooks, 175 N.J. 215, 225 (2007); State v. Wallace, 146 N.J. 576, 582 (1996). It is rare for a prosecutor's decision to be overturned and it can only occur where there has been a patent and gross abuse of discretion. See State v. Leonardis, 73 N.J. 360,382 (1977). There is no such abuse of discretion demonstrated here.

Certainly after applying all the appropriate factors and criteria for making a decision on admission to PTI in this case with this defendant, reasonable minds could differ. However, absent a gross and patent abuse of discretion, we defer to the prosecutor's decision on whether to admit a defendant to PTI.

A lesser standard than gross abuse of discretion applies to a request to remand a refusal back to the prosecutor for reconsideration. In State v. Dalglish, 86 N.J. 503, 509 (1981), where the Supreme Court explained "[a]lthough a court may not order the enrollment of a defendant in PTI unless he has demonstrated a patent and gross abuse of discretion by the prosecutor, we have recognized that a remand to the prosecutor may be appropriate without such a showing in certain cases." See also State v. Bender, 80 N.J. 84, at 94 (1979). These are cases where a court finds that the prosecutor's decision was arbitrary, irrational or otherwise an abuse of discretion but not a patent and gross abuse and also determines a remand will serve a useful purpose. In this case there is no basis for returning this matter to the prosecutor for a second review of the relevant factors because there is no basis for a finding that relevant factors were not properly considered or that the decision was arbitrary or capricious. The prosecutor found based on the defendant's prior failure on probation that he was not suited for PTI. The judge's denial of defendant's motion for reversal of the prosecutor's decision is affirmed.

Affirmed.