STATE OF NEW JERSEY v. P.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

P.R.,

Defendant-Appellant.

______________________________________________

December 16, 2014

Submitted October 6, 2014 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-03-626.

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

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

PER CURIAM

Defendant P.R. appeals the Law Division's decision affirming the prosecutor's rejection of her application for pretrial intervention (PTI). She claims that the prosecutor's rejection "is an arbitrary, patent and gross abuse of discretion." We disagree and affirm.

In 2008, defendant began living with D.D. whom she knew to be a registered sex offender. They had one child together, D.D. Jr. Defendant had three other children from prior relationships, including a daughter, T.R., who lived with defendant and D.D.

S.C. was the daughter of a neighbor and a friend of T.R.'s. During the summer of 2010, when T.R. was twelve and S.C. was thirteen, S.C. would stay overnight at T.R.'s home. During one of these occasions, S.C. awoke to find D.D. touching her leg and rubbing her vagina over her underwear. She pushed D.D. away and left the room.

Two weekends later, S.C. slept over again and awoke to find D.D. rubbing her leg over her sweatpants. D.D. then touched her stomach under her shirt. When she asked D.D. why he was doing this, he told her not to say anything and left the room. S.C. told T.R. about the incident and she promised to tell defendant.

A few weeks later, S.C. and T.R. were in defendant's room. When T.R. left the room, D.D. entered, grabbed S.C. by her neck, and told her he knew that T.R. found out what happened and S.C. should not say anything. S.C. screamed and T.R. woke defendant up. Defendant and D.D. argued and defendant then told S.C. to leave the home and never come back.

After S.C. reported the incidents to police, T.R. was interviewed and disclosed that she had told defendant about D.D.'s abuse of S.C. T.R. also told police that D.D. had molested her over a three-year period between the ages of six and nine. T.R. had told defendant about this abuse three years earlier, when she was nine.

Defendant initially denied knowledge of the abuse of T.R. and S.C., but later admitted that both T.R. and S.C. had told her about it. She also acknowledged knowing that D.D. had abused her eldest daughter, E.C., but had not reported it.

Defendant and D.D. were charged in a twelve-count indictment. Defendant was named in four of the counts and charged with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count nine); two counts of fourth-degree child abuse, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 (counts ten and twelve); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count eleven). On May 21, 2012, defendant pled guilty pursuant to a negotiated agreement to counts ten and twelve. The State agreed to recommend a non-custodial sentence and dismiss the remaining counts of the indictment that were pending against defendant.

On March 13, 2013, with the consent of the State, the court permitted defendant to apply for PTI. The criminal division manager (CDM) declined to recommend defendant for enrollment in PTI based on four factors of N.J.S.A. 2C:43-12: the nature of the offense, the facts of the case, the motivation and age of defendant, and the likelihood that her crime is related to a condition which would be conducive to change if afforded the PTI program. The CDM noted that defendant failed to appear for a PTI intake interview with a senior probation officer and made no attempt to contact her afterward. He concluded that this indicated that defendant "does not possess the motivation and desire to cooperate with a program designed for minimal supervision."

On April 29, 2013, the prosecutor notified defendant that he concurred with the decision of the CDM to reject her application.

Defendant appealed the rejection of her PTI application to the trial court. At oral argument, defendant maintained that she never received notice of the intake interview and no one from PTI made any efforts to follow up with her.

Judge Lisa Rose noted that defendant's failure to appear for the intake interview was only one of several factors considered in rejecting her application. Judge Rose found that defendant's failure to report the sexual abuse of three child-victims, S.C., T.R. and E.C, constituted "a pattern." Judge Rose concluded that the decision to reject defendant's PTI application did not rise to the level of a patent and gross abuse of discretion, and denied the appeal.

On appeal, defendant raised the following point

Point i

The prosecutor's rejection of defendant's admission into pti is an arbitrary, patent, and gross abuse of discretion, which must be corrected by this court.

The prosecutor argues that the court properly upheld his rejection of defendant's PTI application, as he considered the relevant PTI factors and the rejection of defendant's application did not constitute a gross abuse of prosecutorial discretion.

Our review of a prosecutor's decision to reject an applicant from PTI is "severely limited," and serves "to check only the most egregious examples of injustice and unfairness." State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). This is because

[the PTI] decision lies, in the first instance, with the prosecutor, and once he has determined that he will not consent to the diversion of a particular defendant, his decision is to be afforded great deference. In fact, the level of deference which is required is so high that it has been categorized as "enhanced deference" or "extra deference."

[Ibid.]

To overcome a prosecutor's rejection of a PTI application, a defendant must "'clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI] program was based on a patent and gross abuse of his discretion.'" Id. at 246 (quoting Kraft, supra, 265 N.J. Super. at 112). To demonstrate an abuse of discretion, a defendant must 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." State v. Negran, 178 N.J. 73, 83 (2003) (quoting State v. Bender, 80 N.J. 84, 93 (1979)) (citation omitted). To rise to the level of a "patent and gross" abuse of discretion, "it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Ibid.

Defendant first challenges her rejection because the senior probation officer failed to interview her prior to making her recommendation. However, the probation interview did not take place because defendant failed to appear for the intake interview and took no steps thereafter to contact the probation department.

Defendant next maintains that her positive attributes, including being a gainfully employed mother of four with no prior criminal involvement or substance issues, were ignored. While we agree that the rejection letter prepared by the CDM1 failed to specifically mention any of defendant's positive personal attributes, it did indicate that defendant's background was reviewed.

The rejection letter indicated that the criteria listed in Rule 3:28 and N.J.S.A. 2C:43-12(e) were considered, and specifically referenced sections (1), (2), (3), and (6) of the statute. The letter provided "sufficient specificity so that defendant [had] a meaningful opportunity to demonstrate that they are unfounded." State v. Maddocks, 80 N.J. 98, 109 (1979). Yet, defendant has not challenged any of the facts relied upon by the CDM.

One of the key considerations in determining eligibility for PTI is "the nature of the offense." See N.J.S.A. 2C:43-12(b), (e)(1). As to this factor, defendant was aware of the sexual abuse of three child-victims, including two of her daughters by a known, registered sex offender. After learning of the abuse, she did nothing to protect these children.

Moreover, defendant was initially charged with second-degree endangering the welfare of a child, a charge that presumptively disqualifies her from PTI. See R. 3:28, Guideline 3(i) ("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."). This provision creates "a presumption against diversion" to PTI. State v. Caliguiri, 158 N.J. 28, 42 (1999).

We conclude that defendant has failed to show the rejection of her PTI application constituted an abuse of discretion, let alone the patent and gross abuse of discretion required to set aside the prosecutor's decision here.

Affirmed.

1 The prosecutor concurred with the recommendation of the CDM to reject defendant's PTI application.