STATE OF NEW JERSEY v. M.L.

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

M.L.,

Defendant-Respondent.

_________________________________________________

May 20, 2014

Argued March 4, 2014 Decided

Before Judges Messano, Hayden and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-11-1660.

Brain D. Gillet, Special Deputy Attorney General/Acting Deputy First Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Nancy A. Hulett, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, of counsel; Douglas Herring, Special Deputy AttorneyGeneral/ Acting Assistant Prosecutor, on the brief).

Darryl M. Saunders argued the cause for respondent.

PER CURIAM

The State appeals from the July 31, 2013 order of the Law Division directing defendant M.L.'s admittance into the Pretrial Intervention (PTI) program over the prosecutor's objection. On appeal, the State argues that the judge erred in permitting defendant's entry into PTI because the prosecutor's denial did not amount to a patent and gross abuse of discretion. After a review of the facts and applicable legal principles, we agree with the State and reverse.

We discern the following facts from the record. On April 19, 2011, defendant's family members contacted the Woodbridge Police Department reporting that defendant had threatened to commit suicide. Defendant had called several family members to say goodbye, obtained his gun from its lockbox, and left his residence. Later that day, defendant contacted his brother-in-law and agreed to return to his residence. Defendant's brother-in-law turned over an unloaded1 Berretta nine millimeter and its ammunition to police.

Defendant was then transported to Raritan Bay Medical Center for evaluation where he was voluntarily admitted. Defendant acknowledged taking his gun in the car with the intent to commit suicide because he was at his "breaking point." Defendant recognized that his actions constituted a "very very stupid decision." He was diagnosed with a single episode of Major Depressive Disorder, prescribed medication, and discharged on April 21, 2011. Thereafter, defendant received aftercare treatment and evaluations, and doctors gave him a positive prognosis.

On November 1, 2011, a Middlesex County grand jury indicted defendant for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Thereafter, defendant applied for admission into the PTI program.

On November 21, 2011, the Criminal Division Manager recommended defendant's admission into PTI based on (1) defendant's lack of prior criminal convictions; (2) his lack of a history of violence; (3) his crime not being directed at others; (4) a determination that "the value of supervisory treatment outweigh[ed] the public need for prosecution[;]" (5) defendant's involvement in treatment and positive prognosis from medical professionals; (6) his character and attitude indicated he was unlikely to reoffend; (7) defendant being the sole caretaker for his two children; (8) defendant's gainful employment; and (9) his amenability to short-term supervision.

On March 26, 2013, the prosecutor refused to consent to defendant's entry into PTI and issued a letter explaining his decision. The prosecutor determined that defendant was not a viable candidate based on the following N.J.S.A. 2C:43-12(e) factors: (1) "nature of the offense;" (2) "facts of the case;" (3) "motivation and age of the defendant;" (7) "needs and interests of the victim and society;" (8) "extent to which the applicant's crime constitute[d] part of a continuing pattern of anti-social behavior;" (9) "applicant's record of criminal and penal violations[;]" (10) "[w]hether or not the crime [was] of an assaultive or violent nature[;]" (14) "[w]hether or not the crime [was] of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;" and (17) "[w]hether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program."

The prosecutor reasoned that defendant possessed "a weapon while contemplating harming himself or others," which constituted "aggressive and violent behavior." The prosecutor gave great weight to defendant's use of a firearm while planning to commit suicide and determined that the need to protect society outweighed the potential for supervisory treatment.

On April 11, 2013, defendant entered into a conditional guilty plea to second-degree unlawful possession of a weapon. In exchange, the State agreed to request a Graves Act2 waiver under N.J.S.A. 2C:43-6.2 and recommend five years of probation. Defendant reserved his right to appeal the PTI denial.

On May 29, 2013, defendant appealed to the trial judge. Defendant claimed that he was under the impression that the prosecutor would permit him to enter PTI if defendant supplied all requested documentation and verbally agreed that he was working towards defendant's admission into the program. Defendant also alleged that the State had "allowed individuals into PTI for committing much more serious and violent crimes than the alleged crime" he committed. The prosecutor denied making any final determination until the March 26, 2013 denial letter.

The trial judge heard defendant's PTI appeal on July 17, 2013. On July 31, 2013, the judge granted defendant's motion and ordered defendant's admission into PTI over the prosecutor's objection. The judge perceived defendant's actions to be a "suicidal episode" and determined that thirteen of the N.J.S.A. 2C:43-12(e) factors weighed in favor of defendant, while only three weighed in favor of the State, and one was in equipoise. Based on this evaluation, the judge concluded that the factors weighed in favor of defendant's admission to PTI and issued an order permitting his admission. This appeal followed.

"The primary purpose of [PTI] is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system." State v. Watkins, 193 N.J. 507, 513 (2008). PTI provides supervisory treatment in lieu of criminal sentencing for defendants whose criminal activity can be deterred through such supervisory treatment. Id. at 517-18. PTI is regulated by N.J.S.A. 2C:43-12 and Rule 3:28. To effectuate the purpose of PTI, "[e]ligibility is broad and includes all defendants who demonstratethe willto effectnecessary behavioralchange .. .." Watkins, supra, 193 N.J. at 513.

Nonetheless, N.J.S.A. 2C:43-12 and Rule 3:28 recognize that not all defendants are appropriate PTI candidates. Ibid. "[D]efendants who have committed certain crimes are viewed as problematic from a rehabilitation perspective[.]" Id. at 519. A person 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." R. 3:28, Guideline 3(i). Thus, this Guideline creates a "presumption against acceptance" into PTI for defendants whose crimes fall into the enumerated categories. State v. Baynes, 148 N.J. 434, 442 (1997). However, this presumption may be overcome if a defendant establishes "compelling reasons" for admission. State v. Nwobu, 139 N.J. 236, 252-53 (1995).

Additionally, according to the Attorney General Directive to Ensure Uniform Enforcement of the "Graves Act" (the Directive), persons charged with an offense carrying a mandatory minimum prison term, such as Graves Act violations, "are subject to a presumption of PTI ineligibility" requiring the defendant to show "compelling reasons" warranting his or her admission. The Directive further states that

[i]n light of the Legislature's recent policy decision to significantly upgrade the seriousness of firearm offenses, it is expected that prosecutors will consent to a defendant's admission to PTI only in rare cases involving extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession (e.g., the defendant has no prior involvement with the criminal justice system, he or she lawfully acquired and possessed the firearm in a different state and the defendant's presence in New Jersey was incident to lawful travel).

Diversion of candidates into PTI is a prosecutorial function, and the prosecutor is endowed with great discretion in deciding whether to prosecute or divert defendants. State v. Wallace, 146 N.J. 576, 582 (1996). Consequently, judicial review of a decision to reject a PTI application is severely limited. Nwobu, supra, 139 N.J. at 246. Interference in that decision by the courts is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

In order to successfully challenge a prosecutor's rejection, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." Watkins, supra, 193 N.J. at 520 (internal quotation marks and citations omitted). This is a heavy burden for any defendant to fulfill. State v. Mosner, 407 N.J. Super. 40, 55 (App. Div. 2009). Our Supreme Court has defined the test for a patent and gross abuse of discretion:

Ordinarily, an abuse of discretion will be manifest if defendant can show 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. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying [PTI].

[State v. Bender, 80 N.J. 84, 93 (1979) (internal citation omitted).]

We review de novo the trial judge's decision to override the prosecutor's rejection of a PTI application. We do so because "[i]ssues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law[.]'" State v. Maddocks, 80 N.J. 98, 104 (1979). "Consequently, on such matters an appellate court is free to substitute its independent judgment for that of the trial court or the prosecutor should it deem either to have been in error." Id. at 105; see also Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).

Applying the requisite demanding standard of review, we are convinced that the trial court erred in overriding the prosecutor's decision. PTI was presumptively unavailable for defendant for two reasons. First, defendant was charged with two second-degree crimes. See Nwobu, supra, 139 N.J. at 254. Secondly, his charges fell under the Graves Act. Thus, defendant had the burden to overcome the presumption of ineligibility by demonstrating "compelling reasons" for his admission. See id. at 252-53. Moreover, once the prosecutor denied defendant's admission, he had to demonstrate a patent and gross abuse of discretion to prevail. See Watkins, supra, 193 N.J. at 520. Defendant failed to meet either of these burdens. Indeed, defendant never alleged that the prosecutor's evaluation was flawed. Instead, defendant merely argued that he had a verbal agreement with the prosecutor,3 and that some other allegedly more egregious defendant was granted PTI.

Here, the trial judge simply substituted his judgment for the prosecutor's, which is inconsistent with the required deferential standard of review. See Wallace, supra, 146 N.J. at 589 (reversing override of prosecutor's rejection, finding "[t]he court essentially evaluated the case as if it stood in the shoes of the prosecutor, whereas it should have been focused on whether it amounted to an 'arbitrary, irrational or otherwise an abuse of discretion' for the prosecutor to have assigned as much weight to the gravity of the offense as she apparently did in this case").

Mindful of the three prerequisites of an abuse of discretion in a PTI case set forth in Bender, supra, 80 N.J. at 93, we perceive no abuse here. The record reflects that the prosecutor considered all relevant factors; he did not consider irrelevant or inappropriate ones; nor did the prosecutor's rejection "amount[] to a clear error in judgment." Ibid. Moreover, the evidence does not demonstrate that the prosecutor's rejection would "clearly subvert the goals underlying [PTI]." Ibid. We recognize that reasonable minds could differ as to defendant's suitability for PTI. However, judicial disagreement with a prosecutor's reasons for rejection does not equate to prosecutorial abuse of discretion so as to merit judicial override. State v. DeMarco, 107 N.J. 562, 566-67 (1987).

The order admitting defendant into PTI is reversed, and the matter is remanded for further proceedings consistent with this opinion.

1 Defendant, who lawfully owned the gun and had a current New Jersey Firearms Purchaser ID card, asserted that the gun was never loaded during the incident.

2 N.J.S.A. 2C:43-6(c).

3 Defendant provides no evidence that the alleged verbal agreement to look favorably on the application was binding or final, or that he detrimentally relied on it.