STATE OF NEW JERSEY v. M.G.M.

NOT FOR PUBLICATION WITHOUT THE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.G.M.,

Defendant-Respondent.

_______________________________

February 25, 2014

Before Judges Lihotz and Maven.

On appeal from the Interlocutory Order of the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-01-0168.

Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief).

Jonathan A. Kessous argued the cause for respondent (Garces & Grabler, P.C., attorneys; Mr. Kessous, of counsel and on the brief).

PER CURIAM

We consider the State's interlocutory appeal of an order granting defendant discovery of the prosecutor's Pre-Trial Intervention (PTI) application decisions for all individuals charged with violating N.J.S.A. 2C:40-26(b). We reverse.

Following a second conviction for driving while intoxicated, defendant M.G.M. was charged with fourth-degree operating a motor vehicle while his driving privileges were revoked, pursuant to N.J.S.A. 2C:40-26(b).1 A conviction under this statute requires the imposition of a mandatory jail sentence. Defendant applied for admission to the Middlesex County PTI Program. The Criminal Case Manager rejected his application. Thereafter, the prosecutor reviewed defendant's application and concurred, issuing a brief one-page rejection letter.

Defendant moved to vacate the PTI rejection, arguing the prosecutor failed to provide an individualistic consideration of whether PTI admission was appropriate. Defendant insisted the prosecutor was implementing a de facto policy to deny PTI admission based solely on the charge itself. He urged the court to order the State to produce "ten examples" of PTI review for defendants charged under N.J.S.A. 2C:40-26(b), which would prove or refute whether there was a "per se presumption used" to deny PTI admission.

Following oral argument, although the judge noted no evidence was produced to show the PTI determination was "other [than] an individual review," he denied defendant's motion without prejudice. However, the judge was persuaded to order the State to release redacted copies of "all correspondence of [PTI] application decisions concerning individuals charged with violating N.J.S.A. 2C:40-26(b)[,] generated as of January 1, 2013." The trial court stayed its decision pending the State's application requesting interlocutory review. We granted leave to appeal.

Maintaining the order for discovery was erroneous, the State argues:

POINT I

DEFENDANT IS NOT ENTITLED TO DISCOVERY OF ANY RECORDS RELATING TO PTI.

POINT II

THE DISCOVERY OF THESE PTI RECORDS VIOLATES R. 1:38-3.

POINT III

THE DISCOVERY OF THESE PTI RECORDS VIOLATES R. 3:28 AND N.J.S.A. 2C:43-13(F).

This matter raises legal issues requiring our plenary review. State v. Nwobu, 139 N.J. 236, 247 (1995). Before we consider the State's argument, it is important to review the standards governing PTI.

A court's review of the prosecutor's determination to deny an application for PTI admission is highly deferential, because "[d]iversion is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582, 589 (1996) (citation omitted).

It is fairly understood that the prosecutor has great discretion in selecting whom to prosecute and whom to divert to an alternative program, such as PTI.

The prosecutor's discretion is not unbridled, however. If a defendant can "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion," a reviewing court may overrule the prosecutor and order a defendant admitted to PTI. . . . A "patent and gross abuse of discretion" is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." In State v. Bender, 80 N.J. 84 (1979), we elaborated on the patent and gross abuse of discretion standard:

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 Pretrial Intervention.

[Id. at 582-83 (internal citations omitted).]

When reviewing an application for PTI admission, the prosecutor's determination "shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense." N.J.S.A. 2C:43-12(b). Furthermore,

[e]ach applicant for supervisory treatment shall be entitled to full and fair consideration of his [or her] application. If an application is denied, the program director or the prosecutor shall precisely state his [or her] findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial.

[N.J.S.A. 2C:43-12(f).]

"PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). Several principles guide the prosecutor's exercise of discretion in determining whether a defendant should be admitted to a PTI program. State v. Hoffman, 399 N.J. Super. 207, 214 (App. Div. 2008). N.J.S.A. 2C:43-12(e) directs prosecutors to consider seventeen factors "in formulating their recommendation of an applicant's participation in a supervisory treatment program[.]" In addition, Rule 3:28 provides eight "Guidelines," which offer "somewhat greater" prosecutorial discretion than the statute, but it is still the prosecutor's responsibility "to weigh the various factors and to reach a determination." Hoffman, supra, 399 N.J. Super. at 214 (quoting Wallace, supra, 146 N.J. at 586). In evaluating an application for admission to PTI, the program director and the prosecutor must consider all of the factors specified in both the statute and the Rule. Id. at 219; see also N.J.S.A. 2C:43-12(e); Guideline 3(i). A "prosecutor must use his or her independent judgment to fully and fairly evaluate" each of the relevant factors and determine the appropriate weight to afford to each. Hoffman, supra, 399 N.J. Super. at 219.

Here, defendant argues the State's decision "in essence amounts to a claim that the veto of his admission [was] . . . 'based upon a consideration of irrelevant or inappropriate factors.'" Sutton, supra, 80 N.J. at 119 (quoting State v. Maddocks, 80 N.J. 98 (1979)). "Should a defendant clearly demonstrate that such was the case, he will have succeeded in showing that an abuse of discretion was manifest." Ibid.

The State responds, maintaining defendant was appropriately rejected from PTI based on the nature of the offense (factor one), the facts of the case (factor two), the needs and interests of the victim and society (factor seven), and whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior (factor ten). N.J.S.A. 2C:43-12(e)(1),(2),(7),(10). In light of the judge's findings regarding the denial of defendant's PTI application, the State asserts his discovery demands are irrelevant as he is "merely fishing for information." Further, the State argues the judge's order for discovery of other PTI reviews is specifically prohibited. We agree.

In challenging a denial of PTI admission, "a defendant will not prevail merely because he can demonstrate that, unlike himself, others who have been charged with similar offenses have been diverted into PTI." Sutton, supra, 80 N.J. at 119. "Rather, he is required to demonstrate through independent evidence that the prosecutor's refusal to sanction his admission was in fact premised upon the consideration of an irrelevant or inappropriate factor." Id. at 119-20. The Supreme Court has noted PTI applicants do not have "a license to subpoena prosecutorial files or interrogate prosecutors under oath in order to substantiate assertions that they have been accorded less favorable treatment than other similarly situated individuals." Id. at 120. "[A] reviewing court's scrutiny is generally limited to the justification contained in the statement of reasons; a criminal defendant cannot 'compel the prosecutor to take the stand,' . . . either literally or figuratively, in the process of challenging his or her PTI rejection decision." Wallace, supra, 146 N.J. at 584 (quoting Bender, supra, 80 N.J. at 94). See also State v. Barath, 172 N.J. Super. 230, 232 (App. Div. 1980) ("[W]e do not suggest that there is a wholesale right to discovery [by] a defendant who applies to [a PTI] program.").

Further, the Supreme Court, in adopting Rule 1:38-3, has identified court records that are "excluded from public access." Subsection (c)(5) lists "[r]ecords relating to participants in . . . programs approved for operation under R. 3:28 (Pre-trial Intervention), and reports made for a court or prosecuting attorney pertaining to persons enrolled in or applications for enrollment in such programs, but not the fact of enrollment and the enrollment conditions imposed by the court[.]" Thus, a prosecutor's rejection of PTI is meaningless without review of the underlying factual support, which may not be released.

We conclude this order for discovery must be reversed. Further, the matter must be remanded to the Law Division because the order rejecting defendant's motion was denied without prejudice, presumably awaiting the outcome of the ordered discovery. In light of our opinion, the judge must enter a final determination on defendant's motion.

Finally, we feel compelled to comment upon the adequacy of the prosecutor's correspondence denying defendant's application for PTI admission. The statute specifically directs the prosecutor to "precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial." N.J.S.A. 2C:43-12(f) (emphasis added). The prosecutor's evaluation should review and weigh "all relevant factors" and provide an explanation of the weight afforded of each to precisely explain why the decision to reject was reached. Wallace, supra, 146 N.J. at 583-84.

The statement of reasons may not simply "parrot" the language of relevant statutes, rules, and guidelines. Sutton, supra, 80 N.J. at 117. At a minimum, the prosecutor "should note the factors present in defendant's background or the offense purportedly committed which led [the prosecutor] to conclude that admission should be denied." Ibid. Additionally, the statement of reasons must not be vague. Rather, the prosecutor's reasons for rejection of the PTI application must be stated with "sufficient specificity so that defendant has a meaningful opportunity to demonstrate that they are unfounded." State v. Maddocks, supra, 80 N.J. at 109.

[Nwobu, supra, 139 N.J. at 249 (alteration in original).]

The prosecutor's scrutiny of all relevant factors is necessary to support the independence of his or her judgment when fulfilling the responsibility granted by the Legislature, as well as to uphold the integrity and proper functioning of the PTI program. Ibid. A statement of reasons both facilitates judicial review of the prosecutorial determination and allows a defendant a meaningful opportunity to rebut the premise upon which that determination is based. State v. Leonardis, 71 N.J. 85, 114-15 (1976).

We understand the prosecutor may concur with or adopt the PTI director's recommendation. Here, the trial court correctly found the prosecutor's office considered all relevant factors in reaching the PTI denial. Nwobu, supra, 139 N.J. at 249. We suggest, however, the preferred course is for the prosecutor to issue a precise statement of reasons for denial, reflecting his or her reasoned consideration of all relevant facts, including those provided by a defendant, which will aid review by defendant and dispel any suggestion of arbitrariness. Ibid.

The judge's decision is reversed, the order dated June 25, 2013 is vacated. Accordingly, we remand this matter for further proceedings consistent with our opinion.

1 Defendant was first convicted of driving while intoxicated, N.J.S.A. 39:4-50, on September 6, 2001. He was convicted of the same offense for a second time on August 15, 2012. The instant charge was issued following an October 7, 2012 arrest.