STATE OF NEW JERSEY v. CELESTE R. JENNINGS

NOT FOR PUBLICATION WITHOUT THE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.

CELESTE R. JENNINGS,

a/k/a TAMIKA BROOKS,

a/k/a RENEE JENNINGS,

a/k/a CELESTE JENNINGS,

Defendant-Appellant.

____________________________________

December 15, 2014

Submitted November 10, 2014 Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-02-233.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephen J. Natoli, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Celeste Jennings appeals from her judgment of conviction. She was charged with second-degree robbery, N.J.S.A. 2C:15-1, but pled guilty to fourth-degree theft, N.J.S.A. 2C:20-2(b)(3), pursuant to a negotiated plea agreement with the understanding that defendant would apply for Pretrial Intervention (PTI). Prior to sentencing, the Acting PTI Director (Director) recommended that defendant's PTI application be denied. The prosecutor apparently adopted the Director's recommendation.1 Judge Joseph V. Isabella rejected defendant's appeal of the PTI denial, and sentenced her to two years of probation.

Defendant appeals. See R. 3:28(g). She raises the following argument

THE REJECTION OF DEFENDANT'S APPLICATION FOR PRETRIAL INTERVENTION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION, WHICH REQUIRES REVERSAL OR, AT MINIMUM, A REMAND FOR RECONSIDERATION.

We reject defendant's argument and affirm the May 1, 2013 judgment of conviction.

I.

The following facts were found in the PTI denial. On October 21, 2011, defendant and two companions confronted the victim on a light rail train in Jersey City. Defendant began to pull the victim's hair, and punched her in the face. After the victim was hit in the head several times, the victim's cell phone was taken from her. Officers responded, got descriptions of three persons from the victim, and quickly apprehended three persons on the street who matched the descriptions. The victim identified defendant as the female who assaulted her, and defendant was arrested.

At the plea hearing, defendant gave sworn testimony that in Jersey City on October 21, 2011, she "took property from" the victim, that the property that she "took" was valued at $200 or more and less than $500, and that she "took it" without the victim's permission, authorization, or consent "to take that property." See N.J.S.A. 2C:20-2(b)(3).

II.

In reviewing defendant's appeal, we must hew to our "severely limited" scope of review. State v. Negran, 178 N.J. 73, 82 (2003). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582 (1996), "'[f]irst, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options,'" State v. Nwobu, 139 N.J. 236, 246 (1995) (citation omitted). Accordingly, courts give prosecutors "'extreme deference,'" ibid. (citation omitted), and "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Negran, supra, 178 N.J. at 82.

"In order to overturn a prosecutor's rejection, a defendant must '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) (citation 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. (citation omitted). Given the 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) (citation omitted) (internal quotation marks omitted). "[I]nterference by reviewing courts is reserved for those cases where needed to check [] 'the most egregious examples of injustice and unfairness.'" State v. Lee, __ N.J. Super. __, __ (App. Div. 2014) (slip op. at 7) (quoting Negran, supra, 178 N.J. at 82).

The PTI program is governed by N.J.S.A. 2C:43 12 to 22, Rule 3:28, and the Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules at pp. 1164-74 (2015) (Guidelines). The eligibility criteria for the PTI Program are primarily set forth in N.J.S.A. 2C:43 12(e) and Guideline 3. One of the key considerations is "the nature of the offense." See N.J.S.A. 2C:43 12(b) and (e)(1). Guideline 3(i) provides that in assessing the nature of the offense, "[a] defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor." Pressler & Verniero, supra, Guideline 3(i) at 1169. This provision represents a "decision to prevent serious offenders from avoiding prosecution in ordinary circumstances," and creates "a presumption against diversion." State v. Caliguiri, 158 N.J. 28, 42 (1999). A defendant can rebut Guideline 3(i)'s presumption by showing "compelling reasons justifying [her] admission and establishing that a decision against enrollment would be arbitrary and unreasonable." Pressler & Verniero, supra, Guideline 3(i) at 1169; see Nwobu, supra, 139 N.J. at 252 ("a defendant must demonstrate something extraordinary or unusual"). Here, because defendant was originally charged with second-degree robbery, she must bear that "heavy burden." Pressler & Verniero, supra,Guideline 3(i) at 1171; see Wallace, supra, 146 N.J. at 588-89.

III.

The PTI denial relied on the facts of the case, N.J.S.A. 2C:43-12(e)(2); the needs and interest of the victim and society, N.J.S.A. 2C:43-12(e)(7); the extent to which the defendant's crime constitutes part of a continuing pattern of anti-social behavior, N.J.S.A. 2C:43-12(e)(8); the defendant's record of criminal and penal violation and the extent to which she may present a substantial risk to others, N.J.S.A. 2C:43-12(e)(9); whether or not the crime is of an assaultive or violent nature, N.J.S.A. 2C:43-12(e)(10); and defendant's history of violence towards others, N.J.S.A. 2C:43-12(e)(12). Defendant argues that in addressing these factors, the PTI denial "consistently distorted the facts and exaggerated [defendant]'s prior history while failing to recognize factors intended to take into account the many social challenges" faced by defendant.

A.

With respect to the facts of the case, N.J.S.A. 2C:43-12(e)(2), defendant argues that, while charged as a robbery, "what occurred in this case was essentially a simple assault by defendant, in the wake of which some other individual who was with [defendant] took [the victim]'s phone." Defendant argues that it was her female companion who actually took the victim's cell phone. However, the New Jersey Transit Police report and supplementary report related that the victim identified defendant "as the actor who assaulted and robbed her, and stated that the other actors had nothing to do with the incident, but were there at the time trying to stop [defendant]." The supplemental report also conveyed the victim's statement that defendant "physically stole her cellular phone."

Defendant cites the victim's grand jury testimony that defendant's friend grabbed the victim's purse, that defendant was pulling the victim's hair, and that "the easiest thing for her to grab was my phone that was right there on my lap. So, then she just grabbed it until her friend let go." The victim also testified that one who "actually physically took" and had the cell phone got away. Even reading the victim's grand jury testimony as contradicting her earlier statements to police, the PTI denial could rely on those earlier statements.

Defendant claims the PTI denial ignored the real facts of the case. Defendant cites the victim's grand jury testimony that upon initially exiting the rail car, defendant screamed to the conductor to reopen the doors, because she thought she had left her cellular phone inside the train. Defendant then approached the victim and yelled, "[O]h, you have my phone. This phone look[s] exactly like mine. Give me my phone back." However, any suggestion that the cellphone belonged to defendant is contradicted by defendant's sworn admissions in her guilty plea. See State v. Simon, 161 N.J. 416, 444 (1999). Nor is there any basis for finding that defendant's subsequent attack was provoked or justified.

Furthermore, the victim's grand jury testimony made clear that even if defendant's friend took the victim's cell phone, defendant aided and abetted the robbery by assaulting the victim. "A person is guilty of robbery if, in the course of committing a theft, [s]he: (1) Inflicts bodily injury or uses force upon another; or (2) Threatens another with or purposely puts h[er] in fear of immediate bodily injury . . . ." N.J.S.A. 2C:15-1(a). "A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both." N.J.S.A. 2C:2-6(a). A person is legally accountable for the conduct of another if she "is an accomplice of such other person in the commission of an offense." N.J.S.A. 2C:2-6(b)(3). "A person is an accomplice of another person in the commission of an offense if: (1) With the purpose of promoting or facilitating the commission of the offense; [s]he (a) Solicits such other person to commit it; [or] (b) Aids or agrees or attempts to aid such other person in planning or committing it." N.J.S.A. 2C:2-6(c). Indeed, the grand jury found the victim's testimony sufficient to charge the defendant with robbery.2

B.

Defendant offers no valid basis to overturn the finding in the PTI denial that defendant's crime was of an assaultive and violent nature. Indeed, defendant's crime was "deliberately committed with violence or threat of violence against another person," and thus "defendant's application should generally be rejected." Pressler & Verniero, supra, Guideline 3(i) at 1169; see Lee, supra, at 4, 8. N.J.S.A. 2C:43-12(e)(10).

In finding that PTI was contrary to the needs and interest of the victim and society, N.J.S.A. 2C:43-12(e)(7), the PTI denial stressed that "[t]he victim was randomly attacked in a transit station," and that "[t]he public and society as a whole need to feel safe while using [public] transportation and to know that those individuals who commit these type[s] of offenses are prosecuted." Defendant argues that the episode was not so much a random attack as an effort by defendant, "albeit an inappropriate and unruly one" to retrieve what she believed to be her cell phone. The PTI denial could reject the argument that defendant's pulling the victim's hair, hitting her in the head, and holding her in a headlock was merely inappropriate or unruly. Defendant critiques the policy of protecting public safety by prosecuting transit crimes, but "policy determinations, such as which offenses to aggressively prosecute, fall within the domain of the prosecutor, not the judiciary." State v. Kraft, 265 N.J. Super. 106, 116 (App. Div. 1993).

C.

Defendant challenges the finding in the PTI denial that her crime constitutes part of a continuing pattern of anti-social behavior, N.J.S.A. 2C:43-12(e)(8), that her record of criminal and penal violations showed she may present a substantial risk to others, N.J.S.A. 2C:43-12(e)(9), and that she had a history of using physical violence towards others, N.J.S.A. 2C:43-12(e)(12). Defendant claims that this misconstrued and exaggerated her past contacts with the courts.

In fact, the simultaneously-prepared Presentence Report (PSR) supported the PTI denial's observation that defendant's "criminal history reflects 6 juvenile contacts and 3 adult arrests," five of which were for offenses of an assaultive nature.

Defendant stresses the dismissal of some of her juvenile charges and the unrelated adult robbery charge. She notes that those making PTI determinations "may draw only limited inferences from juvenile or adult criminal histories that contain dismissed offenses." Brooks, supra, 175 N.J. at 219. There is no reason to believe that the inferences drawn from defendant's dismissed offenses in the PTI denial were anything more than limited.

More importantly, defendant had been adjudicated delinquent for several charges, including charges of an assaultive nature. She also has an adult conviction of breach of the peace, committed after this offense. There was thus a factual basis for the PTI denial's observation that "this victim is just the latest of many that have been subjected to [defendant's] assaultive behavior," and that defendant had "a documented history of violence towards others." Defendant attempts to minimize her assaultive adjudications, but the prosecutor could take into account her assaultive conduct indicated by those adjudications, as well as her violation of a prior probation.

Defendant criticizes the comment in the PTI denial that "[d]ocuments indicate that [defendant] committed numerous unprovoked assaults with all of the victims [being] female, with two known to require hospital treatment." Defendant complained to the trial court that no documents supporting those facts were supplied to the defense. However, the trial court made no reference to those alleged facts in ruling that the PTI denial was not an abuse of discretion. We find no indication that the mention in the PTI denial of these alleged facts was "clearly capable of providing an unjust result." R. 2:10-2.

Lastly, defendant argues that the PTI denial should have focused on "[t]he existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment." N.J.S.A. 2C:43-12(e)(5). According to defendant, her grandmother raised her until she was eight years old. When her grandmother died, both of her parents were incarcerated, and an aunt assumed primary custody of defendant for approximately five years. At age thirteen, defendant began living with her sister's family, where she continued to reside until the time of her arrest. Defendant left high school at the age of seventeen, and has an extremely limited employment history, with her only income coming from the federal food stamp program.

However, "unless and until a defendant demonstrates the contrary, our judges must presume that all relevant factors were considered and weighed prior to a prosecutorial veto." State v. Bender, 80 N.J. 84, 94 (1979). Indeed, the prosecutor told the court that the prosecutor "did take a variety of factors into account, including all of the familial issues that have been mentioned." The prosecutor said those factors were taken into account when the prosecutor agreed to significantly reduce the charges from second-degree robbery to fourth-degree theft, which gave the defendant the opportunity for a probationary sentence and possible future expungement. The trial court agreed defendant had received an "exceptionally generous plea offer," and placed defendant on probation for two years, taking into account that she had just had a baby. The court imposed the conditions that defendant submit to random drug monitoring, obtain a General Education Diploma (G.E.D.), and either secure gainful employment or complete 100 hours of community service. Probation with these conditions provided defendant with the benefits of supervisory treatment.

In any event, defendant has not met her burden of showing a patent and gross abuse of discretion. Watkins, supra, 193 N.J. at 520. It is insufficient to show the denial "(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." Bender,supra, 80 N.J. at 93. The defendant must also show the denial "will clearly subvert the goals underlying Pretrial Intervention." Ibid. Defendant has failed to make such a showing and failed to show that remand is required because denial was "'arbitrary, irrational, or otherwise an abuse of discretion.'" Wallace, supra, 146 N.J. at 583 (citation omitted).

Affirmed.

1 Although we have not been supplied with a document showing the prosecutor's agreement with the recommendation, defendant appealed "the decision by the Prosecutor rejecting the defendant's Pretrial Intervention Application," and the prosecutor opposed the appeal. Accordingly, we will treat the prosecutor as having adopted the Director's written recommendation (The PTI Denial).

2 Defendant notes a grand juror asked about simple assault, but the grand jury instead found robbery even though the prosecutor advised that the grand jurors had "the right to originate a charge of assault if you want to."